The document discusses the enforceability of regulatory decisions issued by the Polish regulatory authority for electronic communications, the President of the Office of Electronic Communications (UKE). It refers to standards developed by the Council of Europe regarding enforceability of administrative decisions and provisional court protection. The document analyzes how Polish law implements European solutions, including those in the EU's framework for electronic communications. It focuses on the competence of Polish courts to suspend enforcement of contested regulatory decisions. The author identifies gaps in Polish regulations and proposes legislative changes to better protect the rights of telecommunications undertakings.
E. rumak, p. sitarek, polish leniency programmeMichal
This paper is devoted to the Polish leniency programme, including the conditions
of obtaining lenient treatment and the applicable procedure. The type, scope
and form of information that must be submitted are commented on as well as
the marker system and summary applications. The intersection of the leniency
scheme with private enforcement of antitrust rules is discussed in detail. Special
attention is devoted to the possible ways in which private antitrust plaintiffs might
access information submitted to the UOKiK by leniency applicants. Thoroughly
analysed are the rules regulating the possibility of obtaining relevant documents
from the UOKiK and from the defendant in the course of civil proceedings as well as the status of the administrative decision in subsequent civil litigation. The paper
covers also the scope of the leniency recipient’s civil liability and touches upon
the possible ways in which it could be limited to enhance the effectiveness of the
leniency scheme. Some suggestions de lege ferenda are also provided concerning
the means of increasing this effectiveness without prejudice to the private parties’
right to compensation.
2010 Legislative Developments in TelecommunicationsMichal
The Act from 9 April 2010 on the amendment of the Telecommunications
Law Act1 (in Polish: Prawo Telekomunikacyjne; hereafter, PT) introduced a broad
range of changes concerning the principles in accordance to which telecoms
services are to be provided to end users in Poland. It is important to stress first
the change in the definition of a ‘subscriber’ [Article 2(1) PT]. Accordingly,
every entity that is party to an agreement for the provision of telecoms services
concluded with a provider of publicly available telecoms services, irrespective
of whether the agreement is concluded in a written or any other form, is now
considered a ‘subscriber’. This amendment results from the ECJ judgment of
22 anuary 20092. The Court declared therein that the limitation of the definition
of a ‘subscriber’ to entities that are party to written telecoms agreements only
is incompatible with Article 2(k) of the Framework Directive.
Can the Right To Be Heard Be Respected without Access to Information about th...Michal
This article analyses Polish competition procedure from the perspective of a) the right
to be heard, and b) the right to receive information about the proceedings. It points out
problems with access to information about competition proceedings which influence the
level of protection of the right to be heard in these proceedings. In order to appraise
this issue, the article embarks upon an examination of the rules governing the right to
be heard in Polish competition enforcement proceedings. It then focuses on the extent
of the competition authority’s obligation to inform undertakings about the actions
addressed to them. The article includes discussion of the rules that circumscribe the
parties’ right of access to evidence in the proceedings. Finally, proposals for changes
in the practice of the competition authority, as well as in the Polish legal framework,
are put forth. The new rules governing competition proceedings before the European
Commission serve as an example for improvements in Polish competition procedures.
P. podrecki, civil law actions against restricting practicesMichal
This paper’s aim is to describe the rules governing the assertion of civil law liability
in the event of a competition law infringement. Given the planned adoption and
implementation of a new EU legislative package concerning private enforcement, it
is useful to determine what legal instruments and procedures are already available
under Polish civil law that serve the protection of market players. This paper will
specify the legal basis for the assertion of civil claims associated with competition
law infringements and present its particularity. Considered will be the provisions
of the Polish Civil Code as well as the provisions of the law on combating unfair
competition and the law on unfair market practices. Discussed will be the full
catalogue of civil law claims that can be asserted in relation to antitrust infringements
as well as the specific purposes of civil law liability in this context. The paper will
also assess the model of determining the effects of competition law violations and
analyse whether private law principles for the calculation of loss can be applied in
antitrust infringement cases. Finally, the paper will discuss the issue of settling the
convergence of liability problem and the proposal concerning the introduction into
the Polish legal system of class actions.
E. rumak, p. sitarek, polish leniency programmeMichal
This paper is devoted to the Polish leniency programme, including the conditions
of obtaining lenient treatment and the applicable procedure. The type, scope
and form of information that must be submitted are commented on as well as
the marker system and summary applications. The intersection of the leniency
scheme with private enforcement of antitrust rules is discussed in detail. Special
attention is devoted to the possible ways in which private antitrust plaintiffs might
access information submitted to the UOKiK by leniency applicants. Thoroughly
analysed are the rules regulating the possibility of obtaining relevant documents
from the UOKiK and from the defendant in the course of civil proceedings as well as the status of the administrative decision in subsequent civil litigation. The paper
covers also the scope of the leniency recipient’s civil liability and touches upon
the possible ways in which it could be limited to enhance the effectiveness of the
leniency scheme. Some suggestions de lege ferenda are also provided concerning
the means of increasing this effectiveness without prejudice to the private parties’
right to compensation.
2010 Legislative Developments in TelecommunicationsMichal
The Act from 9 April 2010 on the amendment of the Telecommunications
Law Act1 (in Polish: Prawo Telekomunikacyjne; hereafter, PT) introduced a broad
range of changes concerning the principles in accordance to which telecoms
services are to be provided to end users in Poland. It is important to stress first
the change in the definition of a ‘subscriber’ [Article 2(1) PT]. Accordingly,
every entity that is party to an agreement for the provision of telecoms services
concluded with a provider of publicly available telecoms services, irrespective
of whether the agreement is concluded in a written or any other form, is now
considered a ‘subscriber’. This amendment results from the ECJ judgment of
22 anuary 20092. The Court declared therein that the limitation of the definition
of a ‘subscriber’ to entities that are party to written telecoms agreements only
is incompatible with Article 2(k) of the Framework Directive.
Can the Right To Be Heard Be Respected without Access to Information about th...Michal
This article analyses Polish competition procedure from the perspective of a) the right
to be heard, and b) the right to receive information about the proceedings. It points out
problems with access to information about competition proceedings which influence the
level of protection of the right to be heard in these proceedings. In order to appraise
this issue, the article embarks upon an examination of the rules governing the right to
be heard in Polish competition enforcement proceedings. It then focuses on the extent
of the competition authority’s obligation to inform undertakings about the actions
addressed to them. The article includes discussion of the rules that circumscribe the
parties’ right of access to evidence in the proceedings. Finally, proposals for changes
in the practice of the competition authority, as well as in the Polish legal framework,
are put forth. The new rules governing competition proceedings before the European
Commission serve as an example for improvements in Polish competition procedures.
P. podrecki, civil law actions against restricting practicesMichal
This paper’s aim is to describe the rules governing the assertion of civil law liability
in the event of a competition law infringement. Given the planned adoption and
implementation of a new EU legislative package concerning private enforcement, it
is useful to determine what legal instruments and procedures are already available
under Polish civil law that serve the protection of market players. This paper will
specify the legal basis for the assertion of civil claims associated with competition
law infringements and present its particularity. Considered will be the provisions
of the Polish Civil Code as well as the provisions of the law on combating unfair
competition and the law on unfair market practices. Discussed will be the full
catalogue of civil law claims that can be asserted in relation to antitrust infringements
as well as the specific purposes of civil law liability in this context. The paper will
also assess the model of determining the effects of competition law violations and
analyse whether private law principles for the calculation of loss can be applied in
antitrust infringement cases. Finally, the paper will discuss the issue of settling the
convergence of liability problem and the proposal concerning the introduction into
the Polish legal system of class actions.
This is the fifth edition of the I·CONnect-Clough Center Global Review of Constitutional Law. This 2020 Global Review assembles detailed but relatively brief reports on constitutional developments and cases in 63 jurisdictions during the past calendar year. The reports are authored by academic and/or judicial experts, and often the reports are co-authored by judges and scholars. The reports in this first-of-its-kind volume offer readers systematic knowledge that, previously, has been limited mainly to local networks rather than a broader readership. By making this information available to the larger field of public law in an easily digestible format, we aim to increase the base of knowledge upon which scholars and judges can draw. We expect to repeat the project every year with new annual reports, and we hope over time that coverage will grow to an even wider range of countries. We invite scholars and jurists from the presently non-covered jurisdictions to contact us about contributing a report in next year’s Global Review.
2010 and 2011 eu competition law and case law developments with a nexus to po...Michal
This third overview of EU competition and sector-specific regulatory jurisprudential
and case law developments with a nexus to Poland covers the years 2010 and 2011.
This period of time is worth noting for several reasons. First, EU courts delivered
a significant number of judgments in ‘Polish’ cases including an increased number of
preliminary rulings. Second, 2010-2011 developments were dominated by judgments
and decisions concerning telecoms. Finally, the Commission adopted only a handful
of Polish State aid decisions following a formal investigation procedure under
Article 108(2) TFEU.
Legislative Developments and Decisional Practice in the Postal Sector in 2009...Michal
In Poland, the rendering of postal services is regulated by the Act of 12 June
2003 – Postal Law (in Polish: Prawo Pocztowe; hereafter the PP Act)1. The Act
determines the conditions governing postal activities and their control as well
as the rendering of postal services and the universal postal service. In 2009,
the National Regulatory Authority proposed to the Ministry of Infrastructure
a number of amendments to the PP Act2. The new provisions were to ensure in
particular fair conditions for postal operators to compete and for consumers to
obtain access to postal services of high quality and at affordable prices. In this
context, separate definitions of the different types of postal services3 were of
key importance. The absence of such definitions makes it possible for private
operators to classify postal services as carriage services to the detriment of
consumer rights. Specific amendments were also to be introduced in light of the
recommendations made in 2009 by the European Commission
The monthly information bulletin of the Centre of Policy and Legal Reform (CPLR) is dedicated to the analysis of state reforms,
in particular in the areas of parliamentarianism and elections, constitutional and judicial reforms, civil service, anticorruption,
etc.
Rights of an Undertaking in Proceedings Regarding Commitment Decisions under ...Michal
The purpose of this article is to present and define the rights of the undertakings
concerned, which are parties to commitment decision proceedings, and to
discuss whether the rights granted to the undertakings are exercised. As regards
commitment decisions the main right of an undertaking/a party to the proceedings
is the right to defend its own interests in negotiations with the Commission. Other rights, such as the right to a transparent procedure, the rights resulting from the
principle of legal certainty and legality of sanctions, and the right to appeal, are also
analyzed. The article argues that these rights are not adequately enforced in EU
competition law. This is a result of a strong negotiating position of the Commission
and the fact that it acts both as a prosecutor and decision-renderer. Additionally,
the scope of European courts’ review is so narrow that it does not guarantee that an
undertaking is protected against offering excessive and unreasonable commitments.
Fines for Failure to Cooperate within Antitrust Proceedings – the Ultimate We...Michal
The aim of this article is to analyse a powerful competence available to antitrust
authorities in Europe in the form of the imposition of fines for the failure to
cooperate within antitrust proceedings. While fines of that type are imposed in
practice very rarely, the article considers the existing decisional practice of the
Polish antitrust authority as well as the European Commission, and presents the
way in which their approach has evolved throughout the years. The article analyses
also the question of the formal initiation of proceedings concerning procedural
violations and the importance of the use of a uniform and fair approach towards
the scrutinized undertakings, especially as fine graduation is concerned. For that
purpose, the article provides also a comparative analysis of past proceedings
conducted by the European Commission and selected judgments of EU Courts.
Рада Європи оприлюднила свій висновок щодо рішень Конституційного Суду України Pravotv
Парламентська більшість та уряд не повинні ставити під сумнів призначення чи перебування на посаді суддів, які були призначені належним чином – висновок Ради Європи стосовно рішень Конституційного Суду України щодо судової влади
A. jurkowska, antitrust private enforcement in polandMichal
This article presents the main difficulties surrounding private enforcement of
antitrust law in Poland, currently the key implementation problem in the field of
antitrust law. Whereas the basic standards concerning the public pillar of antitrust
enforcement have already been established, either in the European Community
(EC) or in its Member States, the private pillar of antitrust enforcement has not
yet been fully developed. The fact that private enforcement of antitrust law is
possible, and in fact equal, to public enforcement is not yet commonly recognized.
In response to the European Commission’s White Paper on Damages actions for
breach of the EC antitrust rules, private enforcement of antirust law is presently under intense discussion in EC Member States. This article should be considered
as one of the contributions to this debate.
It presents the main legal framework of private enforcement of antitrust law in
Poland. In order to do so, it directly refers to the Polish Act on competition and
consumer protection, the Civil Code and the Civil Procedure Code. This article
also discusses Polish case law in this area. It aims to assess whether existing Polish
legal provisions are, in fact, sufficient to ensure effective private enforcement of
Polish as well as EC antitrust law. The article refers to the main proposals of the
European Commission’s White Paper.
It is concluded that private enforcement of antitrust law is indeed possible in
Poland on the basis of currently applicable procedural rules, even if there are no
special instruments designed to facilitate it. However, it cannot be expect that in the
current legal climate, private parties will eagerly and frequently apply for damages
in cases of a breach of Polish antitrust law. Antitrust cases are special in many
aspects and, thus, they require specific solutions in procedural terms. This article
aims to pinpoint those areas, where the Polish law needs to be changed in order to
develop and promote private enforcement of antitrust law in Poland.
Commission guidelines on assessment of significant market power. case commentMichal
The ruling of the Court of Justice (hereafter, CJ) in the PTC case concerns the
interpretation of Article 58 of the Treaty of Accession1 establishing an obligation
to publish EU legal acts in the languages of Member States which accessed the EU
on 1 May 2004. A controversy emerged in this context whether the said obligation
also applied to European Commission Guidelines on relevant market analysis and
the assessment of significant market power in the field of electronic communication
(hereafter, 2002 Guidelines)2. In general, guidelines issued by the Commission are
regarded as acts of soft law, also called innominate acts or sui generis acts.
The functioning of the European Union is very complex and complicated. The branch of law which regulates the function of European Union is called Law of the European Union and as main sources have the treaties, directives, regulations and other similar documents issued by the institutions of the EU.
The ne bis in idem Principle in Proceedings Related to Anti- Competitive Agre...Michal
The source of the ne bis in idem principle in European Union law is found in both
the Protocol no. 7 to the Convention for the Protection of Human Rights and
Fundamental Freedoms (Convention) and in the legal systems of many Member
States. It is enshrined in the jurisprudence of the EU courts as a general principle
of EU law. Furthermore, it has also been introduced into some international
agreements concluded by the Member States, i.e. the Convention on the protection
of the European Communities’ financial interests and the Convention on the fight
against corruption, which remain an integral part of EU legislation, as well as in the
Convention implementing the Schengen Agreement, which has been progressively
integrated into EU legislation.
Following the entry into force of the Treaty of Lisbon, which incorporates the
Charter of Fundamental Rights of the European Union (Charter) into EU primary
law, the provision on the application of the ne bis in idem principle is now applied
in the European Union in areas broader than just the scope of the three abovementioned
Conventions. The significance of this principle may also be strengthened
following the accession of the EU to the Convention, as has been set forth in the
new Article 6(2) TEU.
The ne bis in idem principle has found its own, lasting place among the rights
and guarantees of undertakings in proceedings conducted by the Commission
and the national competition authorities (NCAs) of the Member States aimed
at prosecuting and/or sanctioning parties for agreements non-compliant with EU
competition law. However, it is still not applied in proceedings against agreements
having a scope which transcends EU borders, conducted by the Commission or the
NCAs of Member States on the one hand, and by the competition authorities of
non-member States on the other. This approach is grounded both in the provisions
of the Convention and in the provisions of the Charter.
This is the fifth edition of the I·CONnect-Clough Center Global Review of Constitutional Law. This 2020 Global Review assembles detailed but relatively brief reports on constitutional developments and cases in 63 jurisdictions during the past calendar year. The reports are authored by academic and/or judicial experts, and often the reports are co-authored by judges and scholars. The reports in this first-of-its-kind volume offer readers systematic knowledge that, previously, has been limited mainly to local networks rather than a broader readership. By making this information available to the larger field of public law in an easily digestible format, we aim to increase the base of knowledge upon which scholars and judges can draw. We expect to repeat the project every year with new annual reports, and we hope over time that coverage will grow to an even wider range of countries. We invite scholars and jurists from the presently non-covered jurisdictions to contact us about contributing a report in next year’s Global Review.
2010 and 2011 eu competition law and case law developments with a nexus to po...Michal
This third overview of EU competition and sector-specific regulatory jurisprudential
and case law developments with a nexus to Poland covers the years 2010 and 2011.
This period of time is worth noting for several reasons. First, EU courts delivered
a significant number of judgments in ‘Polish’ cases including an increased number of
preliminary rulings. Second, 2010-2011 developments were dominated by judgments
and decisions concerning telecoms. Finally, the Commission adopted only a handful
of Polish State aid decisions following a formal investigation procedure under
Article 108(2) TFEU.
Legislative Developments and Decisional Practice in the Postal Sector in 2009...Michal
In Poland, the rendering of postal services is regulated by the Act of 12 June
2003 – Postal Law (in Polish: Prawo Pocztowe; hereafter the PP Act)1. The Act
determines the conditions governing postal activities and their control as well
as the rendering of postal services and the universal postal service. In 2009,
the National Regulatory Authority proposed to the Ministry of Infrastructure
a number of amendments to the PP Act2. The new provisions were to ensure in
particular fair conditions for postal operators to compete and for consumers to
obtain access to postal services of high quality and at affordable prices. In this
context, separate definitions of the different types of postal services3 were of
key importance. The absence of such definitions makes it possible for private
operators to classify postal services as carriage services to the detriment of
consumer rights. Specific amendments were also to be introduced in light of the
recommendations made in 2009 by the European Commission
The monthly information bulletin of the Centre of Policy and Legal Reform (CPLR) is dedicated to the analysis of state reforms,
in particular in the areas of parliamentarianism and elections, constitutional and judicial reforms, civil service, anticorruption,
etc.
Rights of an Undertaking in Proceedings Regarding Commitment Decisions under ...Michal
The purpose of this article is to present and define the rights of the undertakings
concerned, which are parties to commitment decision proceedings, and to
discuss whether the rights granted to the undertakings are exercised. As regards
commitment decisions the main right of an undertaking/a party to the proceedings
is the right to defend its own interests in negotiations with the Commission. Other rights, such as the right to a transparent procedure, the rights resulting from the
principle of legal certainty and legality of sanctions, and the right to appeal, are also
analyzed. The article argues that these rights are not adequately enforced in EU
competition law. This is a result of a strong negotiating position of the Commission
and the fact that it acts both as a prosecutor and decision-renderer. Additionally,
the scope of European courts’ review is so narrow that it does not guarantee that an
undertaking is protected against offering excessive and unreasonable commitments.
Fines for Failure to Cooperate within Antitrust Proceedings – the Ultimate We...Michal
The aim of this article is to analyse a powerful competence available to antitrust
authorities in Europe in the form of the imposition of fines for the failure to
cooperate within antitrust proceedings. While fines of that type are imposed in
practice very rarely, the article considers the existing decisional practice of the
Polish antitrust authority as well as the European Commission, and presents the
way in which their approach has evolved throughout the years. The article analyses
also the question of the formal initiation of proceedings concerning procedural
violations and the importance of the use of a uniform and fair approach towards
the scrutinized undertakings, especially as fine graduation is concerned. For that
purpose, the article provides also a comparative analysis of past proceedings
conducted by the European Commission and selected judgments of EU Courts.
Рада Європи оприлюднила свій висновок щодо рішень Конституційного Суду України Pravotv
Парламентська більшість та уряд не повинні ставити під сумнів призначення чи перебування на посаді суддів, які були призначені належним чином – висновок Ради Європи стосовно рішень Конституційного Суду України щодо судової влади
A. jurkowska, antitrust private enforcement in polandMichal
This article presents the main difficulties surrounding private enforcement of
antitrust law in Poland, currently the key implementation problem in the field of
antitrust law. Whereas the basic standards concerning the public pillar of antitrust
enforcement have already been established, either in the European Community
(EC) or in its Member States, the private pillar of antitrust enforcement has not
yet been fully developed. The fact that private enforcement of antitrust law is
possible, and in fact equal, to public enforcement is not yet commonly recognized.
In response to the European Commission’s White Paper on Damages actions for
breach of the EC antitrust rules, private enforcement of antirust law is presently under intense discussion in EC Member States. This article should be considered
as one of the contributions to this debate.
It presents the main legal framework of private enforcement of antitrust law in
Poland. In order to do so, it directly refers to the Polish Act on competition and
consumer protection, the Civil Code and the Civil Procedure Code. This article
also discusses Polish case law in this area. It aims to assess whether existing Polish
legal provisions are, in fact, sufficient to ensure effective private enforcement of
Polish as well as EC antitrust law. The article refers to the main proposals of the
European Commission’s White Paper.
It is concluded that private enforcement of antitrust law is indeed possible in
Poland on the basis of currently applicable procedural rules, even if there are no
special instruments designed to facilitate it. However, it cannot be expect that in the
current legal climate, private parties will eagerly and frequently apply for damages
in cases of a breach of Polish antitrust law. Antitrust cases are special in many
aspects and, thus, they require specific solutions in procedural terms. This article
aims to pinpoint those areas, where the Polish law needs to be changed in order to
develop and promote private enforcement of antitrust law in Poland.
Commission guidelines on assessment of significant market power. case commentMichal
The ruling of the Court of Justice (hereafter, CJ) in the PTC case concerns the
interpretation of Article 58 of the Treaty of Accession1 establishing an obligation
to publish EU legal acts in the languages of Member States which accessed the EU
on 1 May 2004. A controversy emerged in this context whether the said obligation
also applied to European Commission Guidelines on relevant market analysis and
the assessment of significant market power in the field of electronic communication
(hereafter, 2002 Guidelines)2. In general, guidelines issued by the Commission are
regarded as acts of soft law, also called innominate acts or sui generis acts.
The functioning of the European Union is very complex and complicated. The branch of law which regulates the function of European Union is called Law of the European Union and as main sources have the treaties, directives, regulations and other similar documents issued by the institutions of the EU.
The ne bis in idem Principle in Proceedings Related to Anti- Competitive Agre...Michal
The source of the ne bis in idem principle in European Union law is found in both
the Protocol no. 7 to the Convention for the Protection of Human Rights and
Fundamental Freedoms (Convention) and in the legal systems of many Member
States. It is enshrined in the jurisprudence of the EU courts as a general principle
of EU law. Furthermore, it has also been introduced into some international
agreements concluded by the Member States, i.e. the Convention on the protection
of the European Communities’ financial interests and the Convention on the fight
against corruption, which remain an integral part of EU legislation, as well as in the
Convention implementing the Schengen Agreement, which has been progressively
integrated into EU legislation.
Following the entry into force of the Treaty of Lisbon, which incorporates the
Charter of Fundamental Rights of the European Union (Charter) into EU primary
law, the provision on the application of the ne bis in idem principle is now applied
in the European Union in areas broader than just the scope of the three abovementioned
Conventions. The significance of this principle may also be strengthened
following the accession of the EU to the Convention, as has been set forth in the
new Article 6(2) TEU.
The ne bis in idem principle has found its own, lasting place among the rights
and guarantees of undertakings in proceedings conducted by the Commission
and the national competition authorities (NCAs) of the Member States aimed
at prosecuting and/or sanctioning parties for agreements non-compliant with EU
competition law. However, it is still not applied in proceedings against agreements
having a scope which transcends EU borders, conducted by the Commission or the
NCAs of Member States on the one hand, and by the competition authorities of
non-member States on the other. This approach is grounded both in the provisions
of the Convention and in the provisions of the Charter.
EU Courts’ Jurisdiction over and Review of Decisions Imposing Fines in EU Com...Michal
The aim of this article is to analyse the extent of judicial review exercised by the EU
courts over the European Commission’s decision imposing fines in EU competition law. When considering appeals against fines in competition law, the position of
the EU courts are limited to a review of imposed fines in respect of the European
Commission’s Guidelines instead of an exercise of a more comprehensive appellate
review. The review should not only be a control of legality but it has to be an unlimited
merits control. An appeal control should be directed to review fully the facts and to
control proportionality of the imposed fines. The article analyses also the question
of the protection of fundamental rights in the scope of the review over decisions
imposing fines. For that purpose, the article provides also a comparative analysis of
the selected judgments of the EU courts and the European Court of Human Rights.
Agata Jurkowska-Gomułka (ed.), Orzecznictwo sądów wspólnotowych w sprawach ko...Michal
The publication under review here edited by Dr. Agata Jurkowska–Gomułka from
the University of Warsaw (Centre for Antitrust and Regulatory Studies) is a collection of
case studies concerning European competition law prepared by a number of individual
authors both academics and practitioners. As a presentation of landmark judgments
of EU courts, it is a continuation of the 2007 publication entitled: Jurisprudence of
the European Community Courts in competition matters in years 1964- 2004 edited
by Professor Tadeusz Skoczny and Dr. Agata Jurkowska (hereafter, Volume I). The
current book (hereinafter, Volume II), commences with 1 May 2004 – an important
date for this publication for two key reasons: first, because of its correlation with
Poland’s EU accession and second, because of its correlation with the entry into force
of Regulation 1/2003. However, the presented judgments do not refer to Regulation
1/2003 primarily due to the lengthy nature of judicial proceedings. There was thus
no chance, before the publication of Volume II, to discuss any jurisprudence based
on this act.
Sławomir Dudzik, Współpraca Komisji Europejskiej z organami ochrony konkurenc...Michal
Sławomir Dudzik seminal work, Cooperation between the Commission and national
competition policy agencies in enterprise concentration control, was published and issued
in 2010 by Wolters Kluwer. It consists of a Preface, six chapters, and a separate
Conclusion, totalling 355 pages. Mr. Dudzik’s work is devoted to a very important
element of competition law, which while theoretically complicated is of great practical
significance. Already in the Preface the author relates, in a convincing fashion,
that as a result, inter alia, of the processes of globalisation ‘cooperation between
governmental competition policy agencies in various jurisdictions in the matter of
control over enterprise concentration has assumed a special significance in recent
years’ (p. 16). They have assigned to themselves the difficult task of defining the
‘principles governing the division of competences between the European Commission
and the national competition policy agencies of the member states of the EU with
regard to enterprise concentration control, as well as delineation of the scope of EU
jurisdiction in this area and related matters with regard to non-EU states’ (p. 17).
In the opinion of this reviewer, Mr. Dudzik fully realises the difficult task he set for
himself.
Standards of Entrepreneur Rights in Competition Proceedings – a Matter of Adm...Michal
The question of standards of entrepreneur rights in competition proceedings has
been for many years considered as one the most controversial issues. Its importance
has been increasing considering that the application of antitrust regulations is often
concomitant with a wide-ranging interference with the freedom of economic activity.
This interference manifests itself in cases concerning both restrictive practices and
the control of concentrations. Valuable source of inspiration for a debate on the
need to take into account numerous standards of rights in competition proceedings was the dispute over the nature of competition proceedings and fines (the
controversy around ‘a criminal law nature’ of competition cases). The jurisprudence
of Strasbourg judiciaries explicitly stresses that in the assessment of a case nature
due consideration should rather not be given to formal classifications set forth
in legal provisions but to the real nature of the case. The ECJ did not share the
assumptions adopted by the European Court of Human Rights on the legitimacy of
a wide interpretation of the “criminal charge” notion within the meaning of Article
6(1) ECHR. In the present EU jurisprudence on competition law, there have been
more and more judgments which deal with standards of rights stemming from
the ECHR. In the context of an ever growing severity of penalties, the guarantee
function of law has been gaining in importance, and hence the standards to be
respected in competition proceedings are of a bigger weight.
Major changes were brought by the entry into force, on 1 December 2009, of the
Treaty of Lisbon. The implementation of the concept aiming at an even stronger
reinforcement of the position of fundamental rights was sealed by granting the EU
Charter of Fundamental Rights of 2000 the binding force by including this Charter
into the EU primary law and by defining the basis for the EU accession to the
ECHR (Article 6 TEU). The introduction of new rules of judicial cooperation in
criminal matters may contribute in future to a better dynamic of the criminalization
of the most serious violations of competition law in the EU Member States (Article
83 and following of the TFEU).
A quick view on the DATA RETENTION AND INVESTIGATORY POWERS ACT 2014, aiming to sort out the retained data by ISPs, the modifications happened in the last version and analyzing why the modifications took place. This quick study comes within a chain of comprehensive researches in the Middle Eastern legislative efforts to have a complete legal framework fighting cybercrime
To regulate or not to regulate – economic approachMichal
The aim of this paper is to present an Indefeasible Right of Use (IRU) as a possible
remedy for telecom infrastructure EU projects that (in Poland) have been lagged
behind the time. Thanks for IRU, Beneficiaries of these EU projects will be able
to save both: time and money and will finish projects successfully. The author
discusses two possible methods of implementing IRU: via regulatory obligation and
via incumbent’s goodwill. The author proposes a game theory model with payoffs
depending on regulator’s and incumbent’s strategies. Using a game theory tree,
the author shows that if only the incumbent is willing to offer his own network,
IRU may be signed and most delays in EU projects disappear. The success is not
so obvious while implementing IRU as an obligation – in this case EU projects
will probably fail.
The European Commission published a White Paper on 2 April 2008 on damages
actions for breach of EU antitrust rules. The content of the White Paper is since
then being prepared to be converted into EU legislation on private antitrust
enforcement. This paper presents the developments in private antitrust enforcement
in Poland after 2 April 2008. It commences with an outline of EU actions in
this field which act as an introduction to the more detailed analysis of recent
jurisprudential and legislative developments in Poland. The latter part of the paper
covers, in particular, the 2009 Act on the Pursuit of Claims in Group Proceedings
and the 2011 Act Amending the Civil Procedure Code and Some Other Acts which
abolishes all specific elements of commercial proceedings, including the statutory ‘non-admission of evidence’ principle. These two legal acts are assessed in order
to establish whether their introduction is likely to help facilitate private antitrust
enforcement in Poland and to consider to what an extent are these developments
responding to the challenges outlined by the European Commission.
Sieci szerokopasmowe w polityce telekomunikacyjnej a book reviewMichal
A new book from Professor Stanisław Piątek, an established authority on
telecommunications law, brings the reader closer to the inner workings of broadband
technology in its legal environment. The title reflects the focus of telecoms policy
on access whereby the only access that matters is to the broadband network in its
many variations. The subject matter itself makes the book worth reading, particularly
in the absence of other major Polish works on this topic. Even if some authors
regarded broadband technologies as obsolete years ago1, in reality it still represents
a lion’s share of the telecoms business. Professor Piątek himself is well aware of the
historical and transitory nature of the subject matter when he defines broadband not
by association with any particular technology but as the ability of whatever technology
available at any given moment to provide a certain minimum transmission speed.
Thus the central notion is open to absorb technologies nonexistent as of yet. This in
turn may pose serious regulatory issues as to what future industries will be subject to
regulation, particularly since the distinction between content and carrier regulation
is becoming increasingly blurred.
Media audiovizualne. konflikt regulacyjny w dobie cyfryzacji a book reviewMichal
The book under review here is entitled Audiovisual Media: regulatory conflict in
the digitalisation era by Katarzyna Chalubinska- Jentkiewicz. As the title suggests,
I expected it to be a monograph on new regulatory problems in the increasingly
digital audiovisual field. The sector itself is well known to cause competence conflicts
between the as many as three different regulatory bodies overseeing it in Poland: the
national telecoms regulator (the UKE President), the audiovisual media supervisory
body (the KRRiT) and the competition authority (the UOKiK President). The impact
of the European Commission can also not be overlooked. The book does indeed
deal in great detail with what is seen as the ‘regulatory conflict’ in the audiovisual
field but the approach applied therein is that of the theory of administration and
administrative/constitutional law rather than that of market regulation. As a result,
the analysis focuses primarily on the perceived ‘conflict’ between Poland’s interests
and regulatory competences and the impact exercised by the European Union as
a whole, rather than on any existing or potential internal conflicts. Key to the entire
analysis is the contraposition of the notion of ‘public interest of a nation’ (State) and
the ‘general interest of the EU’ whereby the special characteristics of ‘national’ public
interest are associated with the notion of ‘public morality’ and also, ‘public mission’.
Legislative developments in the aviation sector in 2011 in polandMichal
The Polish Aviation Law Act of 3 July 2002 was amended six times in
2011. The only major change introduced in this period resulted from the
Amendment Act to the Aviation Law Act of 30 June 2011, most of which
entered into force 30 days after its publication1. In fact, changes introduced
thereby were so widespread and crucial to the entire aviation sector that it
can easily be referred to as a completely new law. Considerable effort went
into the preparation of this Act – its first draft was presented as early as 2009
followed by long consultations and the ultimate introduction of a number of
further changes.
Legislative developments in rail transport in 2011 in polandMichal
Most amendments of the Polish rail transport law in 2011 concerned the
organisation of rail transport including: improvements in timetable changing
procedures; mechanisms to ensure the observance and early publication of
timetables; interoperability of the rail system and; certification of train drivers.
Introduced were also some changes meant to restructure the incumbent state
rail operator (in Polish: Polskie Koleje Państwowe; hereafter PKP).
Legislative and jurisprudential developments in the telecommunications sector...Michal
The Telecommunications Law Act1 (in Polish: Prawo Telekomunikacyjne,
hereafter: PT) was subject to a number of amendments in 2011 introduced by
the Amendment Act of 14 April 2011 and the Amendment Act of 16 September
2011 as well as by the separate Act of 30 June 2011 on the implementation of
digital terrestrial television.
In response to the reservations expressed by the European Commission
regarding the compatibility of the way in which regulatory obligations
concerning the setting of wholesale prices are imposed in Poland, the
Amendment Act of 14 April 2011 changed Articles 39 and 40 PT2. The direct
reason for this amendment was set out in a reasoned opinion prepared by the
Commission in October 2010 under Article 258 TFEU3. It was stated therein
that Polish rules regarding the establishment of wholesale prices may give
rise to legal uncertainty and may be discriminatory towards certain telecoms
operators.
Legislative and jurisprudential developments in the postal sector in 2011 in ...Michal
Postal services in Poland are governed by the Postal Law Act of 2003 (in
Polish: Prawo Pocztowe)1 which maintains the monopoly of the public operator
Poczta Polska with respect of letters weighing up to 50 grams. However, Poland
will have to fully liberalize its postal services market by 31 December 2012.
For this reason, the Government adopted on 5 October 2010 Assumptions
for the Draft Postal Law Act as proposed by the Minister of Infrastructure2.
However, the Draft was not placed on the Government’s legislative agenda
for 2011. Thus, the majority of legislative work will have to be completed in
2012, a fact that jeopardizes the implementation of Directive 2008/6/EC. The
latter indicates 31 December 2012 as the deadline beyond which Member
States must not maintain a privileged position of operators providing universal
postal services
Legislative and jurisprudential developments in the energy sector in 2011 in ...Michal
The year 2011 brought about fundamental changes to the legal framework
affecting energy markets in Poland. The most important of these changes
concerned rules on obligatory public trading of electric energy (so-called,
exchange obligation) and the implementation of Nuclear Facilities Projects
and Obligatory Natural Gas Reserve System Projects.
Key legislative and jurisprudential developments of Polish Antitrust Law in 2011Michal
The article presents key developments in Polish antitrust legislation and jurisprudence
of 2011. Its legislative part focuses on the renewal of Polish Group Exemption
Regulations for vertical agreements, specialization and R&D agreements as well as
cooperation agreements in the insurance sector. Noted is also the sole amendment
of the Competition Act introduced in 2011 which concerns the financial liability of
the Polish competition authority. The article covers also the new Guidelines of the
UOKiK President on the criteria and procedures of merger notifications. Presented
in its jurisprudential part is a number of 2011 rulings, mainly those rendered by
the Supreme Court and the Court of Appeals, divided according to their subject
matter with respect to particular types of restrictive practices and other problems
related to the decision-making process of the UOKiK President.
Is the parallel competence set out in regulation 12003 totally clear. case co...Michal
With a motion dated 28th of April 2005 submitted to the President of the Office of
Competition and Consumer Protection (in Polish: Prezes Urzędu Ochrony Konkurencji
i Konsumentów; hereafter, UOKiK President), Tele2 Polska Sp. z o.o. (currently:
Netia S.A., hereafter, Applicant) requested the initiation of antitrust proceedings
against Telekomunikacja Polska S.A. (hereafter, TP). The Polish incumbent, TP, was
alleged to have engaged in practices restricting competition covered by Article 8(1)
and 8(2)(5) of the Act on Competition and Consumer Protection of 15th December
2000 (hereafter, Competition Act 2000) and in Article 82 of the Treaty establishing
European Community (hereafter, TEC), presently, Article 102 of the Treaty on the
functioning of the European Union (hereafter, TFEU).
How to facilitate damage claims private enforcement in croatiaMichal
Ever since the Croatian Competition Agency started functioning in 1997, public
enforcement of competition law has been the norm. Civil actions for breaches of
competition law have been the exception in Croatia. The existing legislation in the
area of competition law makes no effort to incentivise private enforcement. There
are no specific rules in the Competition Act 2009 dedicated to civil actions, except a
single provision that assigns jurisdiction over damages claims to commercial courts.
General tort law is applicable in order to prove damages. A number of issues arise
here mostly due to the complexity of competition cases. These issues were described
in the European Commission’s White Paper on Damages Actions for Breach of
EC Antitrust Rules (2008). The level of uncertainty as regards the outcome of the
claim is high. It seems that special rules need to be adopted in Croatia in order
to improve the position of the injured side. The paper deals with a number of
procedural and substantive law issues relevant to the facilitation of civil proceedings
for antitrust damages. A domestic law perspective is applied taking into account
recent developments in EU competition law and policy.
European audiovisual sector – where business meets society’s needs a book r...Michal
The Centre for Antitrust and Regulatory Studies (CARS), responsible for this
yearbook, also prepares the publication of textbooks and monographs. An Englishlanguage
textbook European Audiovisual Sector: Where business meets society’s needs
written by Dr. Ewelina D. Sage is one of the latest publication in this series
Differentiation between entrepreneurs and its legal consequences. case commentMichal
The discussed judgment was rendered in relation to the dispute between the
President of the Polish Competition Authority (hereafter, UOKiK President) on the
one hand and the Polish Football Association and the broadcaster Canal+ on the
other hand. These two undertakings were party to an agreement on exercising media
rights to football games of the two highest classes of the Polish league. The core of
the dispute consisted of the possibility of deeming the pre-emption right reserved
for Canal+ as a contractual provision restricting competition. The Courts involved
were also forced to answer the question whether performing tasks of a public service
character justified a decrease in the fine imposed by the competition authority
Development of the judicial review of the decisions in slovakiaMichal
The article provides an analysis of the most important judgments rendered by
Slovak courts at the end of 2010, in the course of 2011 and at the beginning of 2012.
The article focuses solely on judicial review of decisions issued by the National
Competition Authority of the Slovak Republic.
Slovak courts dealt with several key issues concerning public enforcement
of competition law such as: the application of the so-called ‘general clause’;
competences of the Slovak competition authority in regulated sectors; and the
application of the economic continuity test. Some of the conclusions resulting from
these judgments may be considered disputable. It may be argued, in particular, that
they may jeopardize the effective enforcement of competition law in the Slovak Republic. At the same time, the discussed jurisprudence has managed to clarify
a number of key issues which had been subject to debate for a number of years. The
article presents a review of these judgments, summarizes their key conclusions and
considers their possible impact on the system of public enforcement of competition
law in the Slovak Republic. The article is divided into a number of parts, each of
which covers an individual case, the titles of which refers to the main topic that was
under discussion in the presented judgment.
In the fifth year of its activities CARS focused on the pursuit of a number of
goals set in its founding documents. It was a particularly busy year for its Publishing
Programme which saw the issue of 6 separate titles: two monographs, an Englishlanguage
textbook, a collective works and two volumes of the ‘Yearbook of Antitrust
and Regulatory Studies’ [a special edition vol. 4(4) and the yearly vol. 4(5)]. 2011 was
also a very active period for the CARS Open PhD Seminar series with four meetings
taking place throughout the year. Several CARS members engaged also in the second
edition of a research project dedicated to regulatory and antitrust aspects of airport
activities (first phase of the project completed in 2010).
What do limitation periods for sanctions in antitrustMichal
Limitation periods represent a legal safeguard for a person who has once
broken the law in order not to be put at risk of sanctions and other legal liabilities
for an indefinite amount of time. By contrast, public interest can sometimes require
that a person who has committed a serious breach of law cannot benefit from
limitation periods and that it is necessary to declare that the law had indeed been
infringed and that legal liability shall be expected irrespective of the passage of
time.
Universal service obligation and loyalty effectsMichal
In network industries, a Universal Service Obligation (USO) is often seen as a burden
on an incumbent, which requires compensation for the net cost of such service
provision. This paper estimates the effects of consumer loyalty as an intangible
benefit of USO in the postal sector. In doing so, the agent-based modelling (ABM)
approach is applied, which makes it possible to model the behaviour of boundedly
rational consumers and is thus particularly appropriate for taking into account
intangibles considerations. The analysis shows that loyalty is crucial to whether
the USO uniform pricing constraint results in loss-making or profitability. Under
certain conditions and in the presence of a loyalty parameter, uniform pricing gives
a USO provider an advantage, when the size of the rural area is sufficiently big
and a disadvantage, if its size is too small. This finding is counterintuitive as USO
providers in countries with sparsely populated areas are typically expected to incur
a significant net cost of USO.
Procedural Autonomy of Member States and the EU Rights of Defence in Antitrus...Michal
The general rule concerning the application of EU law in the Member States is
that, unless the procedural issues are directly regulated in EU primary or secondary
law, the Member States possess a so-called ‘procedural autonomy’. This rule applies
fully to national antitrust proceedings, where the presumed infringement may
affect trade between EU Member States (decentralised EU antitrust proceedings). However, the procedural guarantees offered to undertakings in EU antitrust
proceedings before the European Commission, often referred to the undertakings’
‘rights of defence’, also form a part of the procedural acquis of EU law. This article
examines the question whether that procedural acquis, stemming mainly from EU
courts’s jurisprudence and formulated with regard to the proceedings before the
European Commission, should be applied as a standard in national (i.e. Polish)
antitrust proceedings where EU law applies.
Exchange of Information and Evidence between Competition Authorities and Entr...Michal
This article concentrates on the exchange of information and evidence between
competition authorities. The issue is analyzed from the perspective of both antitrust
and merger cases. The level, scope and intensity of cooperation between competition
authorities differs in respect to these two kinds of cases and, to an extent, the applicable legal framework varies as well. Our analysis is based on EU law, national
legislation, and relevant case law, with attention also given to other sources of law
such as bilateral and multilateral agreements, best practices, recommendations etc.
In addition the problem of exchange of information is examined through the prism
of the Polish Competition Act. Regulation 1/2003 and the ECN, created upon
its provisions, provide detailed rules applicable for the exchange of evidence and
information between competition authorities in antitrust cases at the European
level. With respect to mergers, the provisions of Regulation 139/2004 do not have
the same high degree of influence, hence considerable attention is given to soft law
acts, such as recommendations of OECD and ICN, or best practices and informal
agreements adopted by national competition authorities.
[Note: This is a partial preview. To download this presentation, visit:
https://www.oeconsulting.com.sg/training-presentations]
Sustainability has become an increasingly critical topic as the world recognizes the need to protect our planet and its resources for future generations. Sustainability means meeting our current needs without compromising the ability of future generations to meet theirs. It involves long-term planning and consideration of the consequences of our actions. The goal is to create strategies that ensure the long-term viability of People, Planet, and Profit.
Leading companies such as Nike, Toyota, and Siemens are prioritizing sustainable innovation in their business models, setting an example for others to follow. In this Sustainability training presentation, you will learn key concepts, principles, and practices of sustainability applicable across industries. This training aims to create awareness and educate employees, senior executives, consultants, and other key stakeholders, including investors, policymakers, and supply chain partners, on the importance and implementation of sustainability.
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1. Introduction and Key Concepts of Sustainability
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3. Measures and Reporting in Sustainability
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To download the complete presentation, visit: https://www.oeconsulting.com.sg/training-presentations
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Putting the SPARK into Virtual Training.pptxCynthia Clay
This 60-minute webinar, sponsored by Adobe, was delivered for the Training Mag Network. It explored the five elements of SPARK: Storytelling, Purpose, Action, Relationships, and Kudos. Knowing how to tell a well-structured story is key to building long-term memory. Stating a clear purpose that doesn't take away from the discovery learning process is critical. Ensuring that people move from theory to practical application is imperative. Creating strong social learning is the key to commitment and engagement. Validating and affirming participants' comments is the way to create a positive learning environment.
Implicitly or explicitly all competing businesses employ a strategy to select a mix
of marketing resources. Formulating such competitive strategies fundamentally
involves recognizing relationships between elements of the marketing mix (e.g.,
price and product quality), as well as assessing competitive and market conditions
(i.e., industry structure in the language of economics).
1. Enforceability of Regulatory Decisions
and Protection of Rights of Telecommunications Undertakings
by
Sławomir Dudzik*
CONTENTS
I. Introduction
II. Standards of the Council of Europe concerning the enforceability
of administrative decisions
1. Enforcement of a non-final decision
2. Suspension of implementation of a final decision
III. Enforceability of decisions under Community law
IV. Enforceability of decisions of national regulatory authorities
in the light of the provisions of Framework
Directive 2002/21/EC
V. Enforceability of decisions by the President of UKE
1. Introductory remarks
2. Decisions which may be appealed to the administrative court
3. Decisions which may be appealed to the Court of Competition
and Consumer Protection
VI. Conclusions
Abstract
The article discusses problems of enforceability of regulatory decisions issued
by the Polish regulatory authority – the President of the Office of Electronic
Communications (UKE) in the context of the protection of the rights of electronic
undertakings. The author refers to the standards for implementing decisions
and provisional protection developed in the law of the Council of Europe and
* Dr. hab. Sławomir Dudzik, Professor at the Chair of European Law, Faculty of Law and
Administration, Jagiellonian University, Krakow. Also partner at ‘T. Studnicki, K. Płeszka,
J. Górski’ LP, Kraków.
Vol. 2008, 1(1)
2. 82 SŁAWOMIR DUDZIK
Community legislation, including Framework Directive 2002/21/EC. He also
analyses Polish legal regulations which introduce European solutions, including
regulations implementing Community framework for electronic communications,
into the national legal order. Special attention is devoted to the competence
of Polish administrative courts and the Court of Competition and Consumer
Protection in suspending the enforcement of contested regulatory decisions. The
author also points to significant gaps in existing national regulations and postulates
the introduction of necessary legislative changes to better protect the rights of
telecommunications undertakings.
Classifications and key words: telecommunication law, national regulatory
authorities; enforceability of regulatory decisions, provisional court protection
I. Introduction
Enforceability of administrative decisions is among the principal issues of
administrative law, since decisions serve administrative authorities as a tool
for pursuing the tasks that are set for them by the legislator. It therefore
becomes important in this context to ensure the enforcement of the orders
and prohibitions contained in a decision1. This is particularly meaningful
in the case of activities of regulatory bodies, including those in the area of
electronic communications. Their aim is to evoke, in the social and economic
reality, specific changes, new behaviours or circumstances that, without an
intervention of this type would:
• not arise at all,
• arise with a considerable delay, or
• arise in a form that does not sufficiently take into account the demands
of the market environment, including consumers2.
1Cf. e.g. Z. Leoński, Egzekucja administracyjna świadczeń niepieniężnych, Warsaw 1968,
pp. 5–8; E. Knosala, Problemy decyzji wykonawczych w administracji publicznej (szkic z nauki
administracji) [in:] Administracja publiczna u progu XXI wieku. Prace dedykowane prof. zw. dr
hab. Janowi Szreniawskiemu z okazji Jubileuszu 45-lecia pracy naukowej, Przemyśl 2000, pp.
295–298.
2 On sectoral regulation, see in particular works by T. Skoczny: “Wspólnotowe prawo regulacji
in statu nascendi” [in:] C. Mik (ed.), Prawo gospodarcze Wspólnoty Europejskiej na progu XXI
wieku, Toruń 2002, pp. 231–247; “Stan i tendencje rozwoju prawa administracji regulacyjnej w
Polsce” [in:] H. Bauer, P. Huber, Z. Niewiadomski (eds.), Ius Publicum Europeaum, Warszawa
2003, pp. 115–164; “Ochrona konkurencji a prokonkurencyjna regulacja sektorowa” (2004) 3(5)
Problemy Zarządzania 7–34. See also: I. Kawka, Telekomunikacyjne organy regulacyjne w Unii
Europejskiej. Problematyka prawna, Zakamycze 2006, pp. 27–70; M. Szydło, Regulacja sektorów
infrastrukturalnych jako rodzaj funkcji państwa wobec gospodarki, Warszawa 2005, pp. 89–182.
YEARBOOK of ANTITRUST and REGULATORY STUDIES
3. ENFORCEABILITY OF REGULATORY DECISIONS AND PROTECTION… 83
Enforcement of an administrative decision (and, in broader terms, an
administrative act) is deemed to mean “introducing such a condition in social
reality, which is in compliance with the provisions of the administrative act”3.
Hence, enforceability of a decision equals its capability to have effects in the
legal and factual spheres of its addressee4. A distinction is made between
substantive and formal enforceability. The former means enforceability with
regard to the provisions of the decision that has been reached, that is, the
actual possibility to exercise the rights or obligations contained therein.
Such capability is an attribute, predominantly, of decisions that provide for
rights and those imposing obligations. In contrast, negative decisions are not
enforceable, as a rule. Formal enforceability, in turn, points to the moment
from which the act may and should be enforced.
The purpose of this paper is to discuss the formal enforceability of decisions
taken by the Polish regulatory authority in matters of electronic communications
– the President of the Office of Electronic Communications (UKE)5. The rules
that govern this enforceability will be considered, including the appeal stage
of the proceedings, emphasising, in particular, the requirements which follow
in that regard from Community law. This will lead to formulating proposals
de lege ferenda, which will improve the effectiveness of judicial review of
regulatory administration in Poland. Seeking the right solutions, the standards
and models applied in broadly understood European law will be referred to.
II. Standards of the Council of Europe
concerning the enforceability of administrative decisions
1. Enforcement of a non-final decision
The problem of the enforceability of an administrative decision may occur
as early as the point of taking the decision at first instance, regardless of
the available means of appeal against it in the due administrative course of
instance. The Council of Europe has not yet developed a comprehensive
position on administrative appeals, including the effects of such appeals on
3 J. Jendrośka, Zagadnienia prawne wykonania aktu administracyjnego, Wrocław 1963,
p. 22.
4 T. Barnat, “Ostateczność i prawomocność decyzji administracyjnych a ich wykonalność”
(1984) 9 Państwo i Prawo 81–82; L. Klat-Wertelecka, “Wykonanie aktu administracyjnego” [in:] J.
Zimmermann (ed.), Koncepcja systemu prawa administracyjnego, Warszawa 2007, pp. 545-547.
5 Hereinafter: “President of UKE”.
Vol. 2008, 1(1)
4. 84 SŁAWOMIR DUDZIK
the enforceability of decisions6. A major step in this direction, however, is
the report on the desirability of preparing a recommendation on administrative
appeals, adopted in Strasbourg on 7 December 2007, by the Council of Europe’s
Working Party of the Project Group on Administrative Law7. In support of
the adoption of such a recommendation, the Working Party points to the
existence of a broad consensus amongst the member states of the Council
of Europe as to the general rules of the administrative appeal procedure.
These include the need to ensure the effectiveness of an appeal. This means
not only the necessity on the part of the appeal body to act swiftly but also,
in certain cases at least, the necessity to suspend the implementation of the
impugned decision. If the law of a particular member state does not provide
for an automatic suspension of a decision when an administrative appeal was
lodged, the possibility to obtain such a suspension should be created upon
request from the appellant.
2. Suspension of implementation of a final decision
The European Convention for the Protection of Human Rights and
Fundamental Freedoms does not refer directly to the necessity of ensuring,
in the legal systems of the signatory states, the possibility for courts of law
to suspend the implementation of an administrative decision. Article 13
of the Convention, which provides for the right to an effective remedy,
stipulates only that “[e]veryone whose rights and freedoms as set forth in
this Convention are violated shall have an effective remedy before a national
authority notwithstanding that the violation has been committed by persons
acting in an official capacity”. In its judgment of 2001 in the Jabari case, the
European Court of Human Rights (ECHR) held, in particular, that the notion
of effective remedy used in this provision includes, inter alia, the possibility of
suspending the implementation of the decision impugned in a situation, where
such implementation poses a realistic risk for the appellant to be subjected to
treatment contrary to Article 3 of the Convention (Prohibition of torture).8
This issue was later developed by the ECHR in its judgment in the Čonka
case.9 The Court held therein that “the notion of an effective remedy under
6 Cf. A. Skóra, “Polska procedura administracyjna w świetle standardów europejskich”
(1999) 1 Przegląd Prawa Europejskiego 67–68.
7 CJ-DA-GT (2007) 9. The Report is available at: http://www.coe.int/t/e/legal_affairs/
legal_co-operation/administrative_law_and_justice/Texts_&_Documents/CJ-DA-GT%20_2007_
%209%20E.pdf.
8 See ECHR judgment of 11 July 2000 in Case No. 40035/98, Jabari v. Turkey, para. 50.
9 See ECHR judgment of 5 February 2002 in Case No. 51564/99, Čonka v. Belgium.
YEARBOOK of ANTITRUST and REGULATORY STUDIES
5. ENFORCEABILITY OF REGULATORY DECISIONS AND PROTECTION… 85
Article 13 requires that the remedy may prevent the execution of measures that
are contrary to the Convention and whose effects are potentially irreversible
[…]. Consequently, it is inconsistent with Article 13 for such measures to
be executed before the national authorities have examined whether they are
compatible with the Convention, although Contracting States are afforded
some discretion as to the manner in which they conform to their obligations
under this provision” (Article 13(79)). In the Court’s opinion, even though
the interested party can apply for staying the execution of the decision, a
procedure where the court uses its discretion as to whether to apply such
stay or not, does not meet the requirements of an effective remedy. It can
be concluded that the Court opts for essentially automatic staying of the
execution of the impugned decision in cases where a realistic risk exists that
potentially irreversible consequences will occur, contrary to the provisions of
the Convention10.
The issue of suspending the execution of final decisions is dealt with in the
Recommendation No. R (89) 8 of the Committee of Ministers to member states
on provisional court protection in administrative matters11. The recitals to this
Recommendation point out that “immediate execution in full of administrative
acts which have been challenged or are about to be challenged may, in certain
circumstances, prejudice the interests of persons irreparably in a way which,
for the sake of fairness, should be avoided as far as possible”. Thus, this
Recommendation indicates the necessity to create, within the legal systems of
each member state, a possibility for the applicant to request the court to take
measures of provisional protection against the administrative act (Principle I).
Such measures can include “suspending the execution of the administrative
act, wholly or partially, ordering wholly or partially the restoration of the
situation which existed at the time when the administrative act was taken or
at any subsequent time, and imposing on the administration any appropriate
obligation in accordance with the powers of the court” (Principle III).
The possibility of requesting measures of provisional protection should be
available where court proceedings have already been opened to review the
10 “It is not possible to exclude the risk that in a system where stays of execution must be
applied for and are discretionary they may be refused wrongly, in particular if it was subsequently
to transpire that the court ruling on the merits has nonetheless to quash a deportation order
for failure to comply with the Convention, for instance, if the applicant would be subjected to
ill-treatment in the country of destination or be part of a collective expulsion. In such cases,
the remedy exercised by the applicant would not be sufficiently effective for the purposes of
Article 13.” (para. 82).
11 See also: J. Chlebny, “Europejskie standardy procedury administracyjnej i sądowo
administracyjnej” [in:] Z. Kmieniak (ed.), Postępowanie administracyjnej w Europie, Zakamycze
2006, pp. 22–23; Z. Kmieciak, “Ochrona tymczasowa w postępowaniu sądowoadministracyjnym”
(2003) 5 Państwo i Prawo 20–22.
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act in question as well as in cases of urgency, even though the act concerned
has not yet been challenged in court. It should also be available when an
administrative complaint, the making of which does not have, in itself, any
suspensive effect, has been lodged against the administrative act and has not
yet been decided upon (Principle I). In accordance with this Recommendation,
in deciding whether the applicant should be granted provisional protection,
the court shall take account all relevant factors and interests (Principle II).
For this reason, the role of the court is to balance the various interests which
come into play in a given case, including the ones which are in support of
executing the act. Provisional protection should be granted, in particular, if
the execution of the administrative act is liable to cause severe damage, which
could only be made good with difficulty. This would be the case where the
setting aside of the challenged act could not lead to the reinstatement of the
applicant’s prior legal status. The other situation where, in the light of this
Recommendation, a suspension of the execution of an act is justified, is if
there are, prima facie, serious legal grounds against the administrative act.
This concerns serious defects which are identifiable as early as at the stage
of the preliminary review of the case, and which will undoubtedly lead to the
setting aside of the challenged act12. The Recommendation emphasises the
necessity for the court to act speedily in cases of provisional protection. This
may mean that an oral hearing can be dispensed with but the proceedings
must remain adversarial (Principle IV). The proceedings should not only
involve the applicant; a representative of the administrative authorities and
interested third parties should also have the possibility of presenting their
views. Although this Recommendation does not mention the necessity to
provide a statement of reasons for the court’s judgment on the provisional
measure, the Explanatory Memorandum seems nevertheless to support such a
solution. The statement of reasons should then briefly but clearly substantiate
the issuing of the provisional measure. As already mentioned, there may be
circumstances in which the urgency of the case makes it impossible to organise
an adversarial court hearing. If, however, the court decides to grant provisional
protection without hearing the interested parties, it should examine the case
again within a short time, in adversarial proceedings. The court may act here
on an ex officio basis or at the wish of one of the interested persons who
previously could not be heard by the court.
The creation of possibilities to apply provisional measures of protection
by a court, which is examining the legality of an administrative act, is also
a requirement set by Recommendation Rec(2004)20 of the Committee of
Ministers to member states on judicial review of administrative acts adopted
12 See Explanatory memorandum attached to Recommendation No. R (89) 8.
YEARBOOK of ANTITRUST and REGULATORY STUDIES
7. ENFORCEABILITY OF REGULATORY DECISIONS AND PROTECTION… 87
on 15 December 2004. The Explanatory memorandum attached to this
Recommendation points out, as is the case in relation to Recommendation
R (89) 8, that provisional measures may include, in particular, the full or
partial suspension of the execution of the disputed administrative act. This
is to enable the tribunal to re-establish the de facto and de jure situation,
which would prevail in the absence of the administrative act, or to impose
appropriate obligations on the administrative authorities (Paragraph 94 of the
Explanatory Memorandum).
III. Enforceability of decisions under Community law
The problem of enforceability of administrative decisions is also present
in Community law. Particular attention should be drawn in this context to
the activities of the European Commission. Amongst its various functions,
this institution also have the competences of an administrative authority that
determines, through its decisions, the rights and obligations of individually
specified addressees (an example of such decisive power of the Commission
may be the enforcement procedure of Community competition law). The
procedure before the Commission is, by its nature, a single-instance one,
and the binding character of its decisions follows directly from the Treaty
establishing the European Community (Article 249 EC). The Treaty requires
that such decisions be notified to their addressees, whereby the date of such
notification is of principal importance for determining the moment upon which
its addressee becomes bound by the decision. Indeed, the Treaty stipulates that
the decision takes effect upon such notification (Article 254(3) EC) and hence,
the addressee is obliged to implement it.
The addressee of a decision may institute proceedings against a decision
addressed to that person at the European Court of Justice (ECJ) (Article 230
EC)13. In the case of individuals, such actions are heard and determined at first
instance by the ECJ (Article 225(1) EC). However, in accordance with Article
242 EC, actions brought before the ECJ shall not have suspensory effect.
Hence, even though an action is brought, the decision in question continues to
be binding upon, and should be fully implemented by, its addressee. It should
be emphasised that Community law does not make any distinctions between
decisions, for instance, in terms of their subject-matter. Bringing an action
to court does not suspend the execution of the challenged decision, even for
13 For more detail, see e.g.: A. Arnull, The European Union and its Court of Justice, Oxford
2006, pp. 53–94, K. Lenaerts, D. Arts, I. Maselis, Procedual Law of the European Union, London
2006, pp. 203–328.
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8. 88 SŁAWOMIR DUDZIK
decisions which interfere particularly strongly with the sphere of rights and
obligations of their addressees, such as, for instance, Commission decisions
imposing financial penalties or imposing behavioural or structural remedies
upon an undertaking that violates Community competition law.
Article 242 EC, second sentence, authorises the competent Community
court to suspend the application of the contested act. The decision in that
regard is left to the discretion of the court (“if it considers …”), with the sole
premise being the necessity to take such an action (“if … circumstances so
require”). The application for suspension of the operation of a measure shall
be admissible only if the applicant is challenging the measure in proceedings
before the Court14. The application must be made by a separate document,
filed together with, or immediately after the bringing of the action. For it to
be dealt with urgently, it must not exceed 25 pages15. It must also state “the
subject-matter of the proceedings, the circumstances giving rise to urgency,
and the pleas of fact and law establishing a prima-facie case for which the
interim measure is to be applied”16. The applications are adjudicated upon,
usually, by the President of the ECJ or the Court of First Instance (CFI)
and, exceptionally, by a judge appointed for this purpose17. Community law
does not set a time limit during which the application for suspension of the
application of a decision should be examined.
The decision on an interim measure should contain a statement of reasons,
and Community law indicates that the effect of such a decision is only temporary
and does not affect the court’s decision as to the merits of the case (Article 39
of the Statute of the ECJ)18. It needs to be emphasised that such a decision
may be changed or reversed any time due to a change in circumstances. This
means that the dismissal of an application for suspending the application of
a decision does not preclude a repeated filing of a corresponding application
by the party, as long as that party is capable of demonstrating, in the new
proceedings, that new circumstances support the application of the interim
measure (suspending the application of the decision).
14 Procedural issues relating to the suspension of operation of the Community decisions
are specified in detail in Article 83–90 of the Rules of Procedure of the Court of Justice and
Article 104–110 of the Rules of Procedure of the Court of First Instance.
15 See Court of First Instance, Practice Directions to parties, OJ [2007] L 232/7, para.
68-71.
16 Article 83(2) of the Rules of Procedure of the Court of Justice, Article 104(2) of the
Rules of Procedure of the Court of First Instance.
17 Article 39 of the Statute of the Court of Justice. The CFI appoints such a judge for
a period of one year. See OJ [2008] C 171/31.
18 Article 83(1) of the Rules of Procedure of the Court of Justice, Article 104(1) of the
Rules of Procedure of the Court of First Instance.
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9. ENFORCEABILITY OF REGULATORY DECISIONS AND PROTECTION… 89
Having regard to the aforementioned procedural provisions applicable
before Community courts as well as the case law of the ECJ and the CFI,
three grounds should be mentioned that determine the possibility of applying
an interim measure19:
• A demonstration, by the applicant, of the existence of pleas of fact and
law establishing a prima facie case for the interim measures that are
being applied for (fumus boni iuris).
In the case of an action against a Commission decision, it should be
demonstrated that the decision is, prima facie, in breach of Community
law in a manner which will in the future result in its invalidation by a
Community court. The CFI points out, however, that an application must
not set out in full the text of the application in the main proceedings20.
The literature on the subject emphasises that the premise of fumus boni
iuris is gradually transformed into the premise of fumus non mali iuris21.
Therefore, this is not the conviction that the main action will succeed,
as much as the view that it is sufficiently justified.
• A demonstration, by the applicant, of the urgency of the case, and hence
that the applicant will suffer serious and irreparable damage if the court
does not apply the interim measure.
In such circumstances the damage would not be possible to repair
even if the party obtains, in the future, a favourable judgment based
on the merits of its case. It follows from the case law that the damage
should be certain, or at least established with sufficient probability. The
burden of proof in this regard rests fully on the applicant. The damage
does not necessarily have to be financial in nature. On the contrary, only
in exceptional cases can financial damage be considered to be irreparable
or reparable only with difficulty. Indeed, such damage can, as a rule, be
covered by future compensation. The occurrence of financial damage
justifies, however, the application for an interim measure where, without
that measure, the applicant would be in a position that could imperil
its existence before the final judgment if the main action is taken22. In
Community case law, a serious and irreversible change in the market
share of the undertaking concerned, which would take place in the
absence of the suspension of the application of the contested Community
19 See K. Lenaerts, D. Arts, I. Maselis, Procedual Law…, p. 433–442; P.K. Rosiak, M.
Szpunar, Postępowanie przed Trybunałem Sprawiedliwości i Sądem Pierwszej Instancji Wspólnot
Europejskich. Aspekty praktyczne, Warszawa 2007, pp. 69–70.
20 See Court of First Instance, Practice Directions to parties, OJ [2007] L 232/7, para. 70.
21 K. Lenaerts, D. Arts, I. Maselis, Procedual Law…, pp. 434–435.
22 See e.g. order of the President of the Court of First Instance in Case T-346/06 R IMS v
Commission [2007] ECR II-1781, paras. 121–123, and the case-law cited.
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10. 90 SŁAWOMIR DUDZIK
act, is treated equally to the disappearance from the market. As noted by
the President of the CFI, in the order in Case T-326/07 R, Cheminova,
“it is therefore not sufficient that a market share, however minimal,
may be irremediably lost; on the contrary it is necessary for that market
share to be sufficiently large. An applicant who invokes the loss of such a
market share must demonstrate, furthermore, that regaining a significant
proportion of it, in particular by appropriate publicity measures, is
impossible by reason of obstacles of a structural or legal nature”23.
• The application of the measure is supported by the result of balancing
the various interests that come into play, that is, the interests of the
parties and the general interest.
This provides an opportunity for the judge to take account the broader
context of the case. It may happen that a particularly serious general
interest or the interest of third parties support the refusal to allow the
application, even if the other two premises for suspending the application
of the decision are fulfilled in the case in question24.
An appeal against a decision of the CFI concerning an interim measure can
be lodged with the ECJ within two weeks of the notification of the first-instance
decision. The right to file an appeal concerning interim measures is also held
by the other parties within the time limit of two months (Article 57 of the
Statute of the ECJ). The appeal is heard by way of a summary procedure
(Article 39 of the Statute of the ECJ). It has no suspensory effect (Article 60
of the Statute of the ECJ).
In 2007, the CFI heard 41 cases for the application of interim measures;
only in 4 cases were the applications granted25.
IV. Enforceability of decisions of national regulatory authorities
in the light of the provisions of Framework Directive 2002/21/WE
The principal act of the new Community regulatory order in the field
of electronic communications is the Directive 2002/21/EC of the European
Parliament and of the Council of 7 March 2002 on a common regulatory
23 Order of the President of the Court of First Instance in Case T-326/07 R Cheminova and
Others v Commission [2007] ECR II-4877, para. 100, and the case-law cited.
24 See e.g. Order of the President of the Court of First Instance in Case T-12/93 R CCE
Vittel and CE Pierval v Commission, [1993] ECR II-785, para. 20; the order of the President
of the Court of First Instance of 18 March 2008 in Case T-411/07 R, Aer Lingus Group Ltd. v
Commission.
25 See Court of Justice, Annual Report 2007, Luxembourg 2008, p. 184.
YEARBOOK of ANTITRUST and REGULATORY STUDIES
11. ENFORCEABILITY OF REGULATORY DECISIONS AND PROTECTION… 91
framework for electronic communications networks and services (Framework
Directive)26. The Framework Directive transfers the solutions that function
with regard to the enforceability of decisions of Community institutions into
the electronic communications law in EU member states. Article 4(1) of the
Framework Directive, which provides for the right of appeal, stipulates in its
final sentence that “pending the outcome of any such appeal, the decision of
the national regulatory authority shall stand, unless the appeal body decides
otherwise”. The expression that the decision ‘shall stand’ should be understood
to refer to its enforceability, its addressees being bound by the provisions of
the decision made by the national regulatory authority, and hence the necessity
to enforce it27. A position to the contrary is presented in this context by
M. Rogalski, who considers that Article 4(1) of the Framework Directive only
provides for the finality of decisions taken by national regulatory authorities
and not their immediate enforceability by virtue of law28. This position is
not accurate. Leaving aside the incorrect identification of the finality of a
decision with its effectiveness, the Prof. Rogalski’s interpretation of Article
4(1) of the Framework Directive is, in fact, detached from the stipulations of
the provision in question. If, as M. Rogalski wishes, the decision remaining in
force were to mean its finality, the power of the appeal body would be hard
to understand, which deprives a decision of this very attribute (i.e. finality),
while the appeal procedure is still pending (“pending the outcome of any such
appeal…”), that is, before the substantive examination of the claims made
against the decision. In such a case, a subsequent judgment on the merits of
the case concluding the appeal procedure would not, in fact, be necessary if
the issue of finality of the contested decision were to be resolved at an earlier
stage of the appeal procedure.
It is worth noting that the Framework Directive does not specify the moment
from which the addressee is bound by the decision of the regulatory authority.
This Directive only mentions that the time continues until the appeal is
heard. An absolute requirement to be bound by the decision of the national
regulatory authority from the moment the decision is issued, or rather delivered
to the party, does not therefore follow from the foregoing. Article 4(1) of the
Framework Directive requires only that the decision has, as a rule, the legal
26 OJ [2002] L 108/33. For more detail, see e.g. S. Piątek, Prawo telekomunikacyjne Wspólnoty
Europejskiej, Warszawa 2003, p. 32–38; J. Kolasa, “Krajowe organy regulacyjne” [in:] W. Gromski,
J. Kolasa, A. Kozłowski, K. Wójtowicz, Europejskie i polskie prawo telekomunikacyjne, Warszawa
2004, pp. 234–247; I. Kawka, Telekomunikacyjne organy…, pp. 133–139.
27 See e.g. S. Piątek, “Prawo telekomunikacyjne w świetle dyrektyw o łączności elektronicznej”
(2005) 3 Prawo i Ekonomia w Telekomunikacji 8.
28 M. Rogalski, Zmiany w prawie telekomunikacyjnym. Komentarz, Warszawa 2006,
pp. 247-248.
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12. 92 SŁAWOMIR DUDZIK
effects provided for therein, regardless of the appeal procedure pending with
respect to it. The procedure referred to in this provision is a procedure before
an appeal body independent of the parties involved (that is, independent from
the appellant, the authority and other parties affected by the decision). This may
be a court of law, even though this is not an absolute requirement in the light
of Article 4(1) of the Framework Directive. The function of an independent
appeal body may also be performed by quasi-judicial institutions of various
types, as long as the national legislator is able to guarantee their independence,
and if they are specialised enough and have the capacity to collect case-law
experience (in its Article 4(1), the Framework Directive points to a body that
“shall have the appropriate expertise available to it to enable it to carry out
its functions”).29 Administrative bodies, even higher-tier ones, can hardly be
referred to as independent of the regulatory authority. The “inter-dependence”
and hierarchical relationships between them, as well as the fact that they both
belong to administrative structures that usually report to the government,
would not let any administrative body, regardless of where it is situated in the
administrative structures of a member state, meet the criteria of an appeal body
referred to in Article 4(1) of the Framework Directive30. The foregoing means
that the enforceability of decisions of the national regulatory authority does not
necessarily materialise at the stage of the administrative appeal, or quasi-appeal
procedure31. As a result, if the national legislator provides, in the administrative
course of instance, for the possibility of filing an appeal against a decision of
the national regulatory authority to a higher level body, or an appeal to the
authority, which issued the challenged decision, this Directive does not require
that the challenged decision “shall stand” for the duration of such procedures.
Hence, it is allowed for the appeals under administrative procedures provided
for in national law, to have the suspensory effect, that is, for them to suspend
the application of the contested decision. The “suspensory” effect of such an
appeal is excluded only where a party can avail itself of the possibility of filing an
appeal with an independent appeal body, which is, in practice, most frequently
a court of law. It should be emphasised that the decision remaining in force
during the appeal procedure, required under Article 4(1) of the Framework
29 Cf. S. Piątek, Prawo telekomunikacyjne Wspólnoty…, p. 58; N.Th. Nikolinakos, EU
Competition Law and Regulation in the Converging Telecommunications, Media and IT Sectors,
Kluwer Law International, 2006, pp. 211–212.
30 Certain concerns in that regard were expressed by the European Commission in its report
of 2003. See Communication from the Commission to the Council, the European Parliament,
the European Economic and Social Committee and the Committee of the Regions, European
Electronic Communications Regulation and markets 2003, Report on the Implementation of the
EU Electronic Communications Regulatory Package, Brussels, 19.11.2003, COM(2003) 715 final,
pp. 26–27.
31 Cf. S. Piątek, Prawo telekomunikacyjne w świetle…, p. 9.
YEARBOOK of ANTITRUST and REGULATORY STUDIES
13. ENFORCEABILITY OF REGULATORY DECISIONS AND PROTECTION… 93
Directive, should have an ipso iure effect, and should not be made dependent
on the activities of the regulatory authority.32 For due implementation of this
Directive, it is thus not sufficient for the national regulatory authority to be
competent to recognise the enforceability of the challenged decision and put
it into force at the stage of the appeal procedure. Hence, the very possibility
for this authority to make the contested decision enforceable immediately at
this stage would not be an appropriate method for the performance of the
implementation obligations of an EU member state.
It should also be emphasised that the principle of a decision of the national
regulatory authority remaining in force for the duration of the appeal
procedure, referred to in Article 4(1) of the Framework Directive, is not
absolute in its nature. The foregoing provision clearly points to the possibility
for this principle to be overturned by a decision of the appeal body. It means
that it is the obligation of the national legislator to create, for the appeal body,
the possibility of temporarily (that is for the duration of the appeal procedure)
suspending the application of the contested decision. The Community legislator
thus puts the effective decision, concerning the enforceability of the decision
of the national regulatory authority, in the hands of the appeal body, that is,
in practice, a court of law. It then assumes that situations may occur in the
application of national legislations that implement the package of Directives
on electronic communications, whereby the independent appeal body should
suspend the application of the contested decision, even though the decision is
essentially enforceable by virtue of law itself. The Framework Directive does
not specify what grounds should determine such suspension.
V. Enforceability of decisions by the President of UKE
1. Introductory remarks
The basic act of law, which implements the package of Community
Directives on electronic communications in Poland, is the Act of 16 July 2004
on Telecommunications Law (PT)33. However, issues of enforceability of
the decisions taken by the President of UKE are also governed by the Code
32 Such a position was taken by the Commission in the abovementioned Report on the
Implementation of the EU Electronic Communications Regulatory Package of 2003 (p. 26).
Differently: M. Rogalski, who considers that immediate enforceability should follow in this
case from a decision by the national regulatory authority and not by virtue of law itself. See.
M. Rogalski, Zmiany w prawie…, p. 250.
33 Dz.U. 2004, No. 171, item 1800, with further amendments.
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of Administrative Procedure (KPA) containing the principal set of rules on
the proceedings before all public administration bodies in matters resolved
through administrative decisions within their competence (Article 1 point 1
KPA). From this point of view, the provision of Article 206(1) PT is of an
organisational nature only and does not, in fact, introduce any new content34.
It needs to be emphasized that the KPA applies to proceedings before the
President of UKE directly and not, for instance, by analogy. It is clear at
the same time that the provisions of the PT, which is a special statute, may
introduce certain modifications with respect to the solutions contained in the
Code. In such a case, the provisions of the PT should prevail, in line with
the commonly adopted method of legal interpretation of lex specialis derogat
legi generali. Due to the nature of the derogations introduced by the PT with
respect to the KPA, special rules of this type may not be interpreted broadly
and hence, where in doubt, a presumption should support the adoption of the
concepts contained in the Code.
Having regard to the issues relating to the enforceability of decisions taken
by the President of UKE, it seems reasonable to divide them into two groups:
decisions that may be appealed to an administrative court and decisions that
may be appealed to the Court of Competition and Consumer Protection
(SOKiK). It is only in the latter case that the decisions are clearly enumerated
in the PT. These are decisions on the designation of significant market power,
the imposition of regulatory obligations, the imposition of penalties, and
decisions issued in disputes (Article 206(2) PT)35. The foregoing means that
decisions, which are not listed as appellable to the Court of Competition
and Consumer Protection in the provisions of Article 206(2) PT, may be
appealed, on general terms, to an administrative court36. This division is the
more justifiable in that only with regard to decisions that can be appealed to
the Court of Competition and Consumer Protection (except for decisions on
the imposition of penalties) that the legislator has decided that they shall be
enforceable immediately (Article 206(2a) PT).
34In accordance with this provision, “Proceedings before the President of UKE shall be
governed by the Code of Administrative Procedure with the amendments hereunder”. See also:
S. Piątek, Prawo telekomunikacyjne. Komentarz, Warszawa 2005, p. 1120.
35 Except for decisions on general exclusive frequency licences following a tender or a
contest and decisions that deem the tender or a contest unresolved.
36 In accordance with Article 184 of the Polish Constitution and Article 3 of the Act of
30 August 2002 – Law of Procedure before Administrative Courts (Journal of Laws 2002,
No. 153, item 1270, with further amendments), in the Polish legal system, the presumption of
competence of administrative courts applies in cases of review of administrative activities.
YEARBOOK of ANTITRUST and REGULATORY STUDIES
15. ENFORCEABILITY OF REGULATORY DECISIONS AND PROTECTION… 95
2. Decisions which may be appealed to the administrative court
As regards this group of decisions of the President of UKE, in the absence
of special rules, they are governed in full by the provisions of the KPA and
the Act on the Law of Procedure before Administrative Courts (PPSA). This
sets a clear situation whereby a party to the procedure has the right to file an
application for re-examining the case (Article 127(3) KPA), with regard to a
decision taken by the President of UKE, as the central authority of government
administration whose process position, for the purposes of the administrative
procedure, is made equal to that of a minister (Article 190(3) PT, Article 5(2)
point 4 KPA). Such an application is not transferred the case to the superior
authority and hence, the case is re-heard by the body that issued the decision
being challenged in the application. Since the legislator requires that such an
application be governed by the provisions on appeals against decisions, the
decision shall not be enforceable before the expiry of the time limit for filing
the said application (Article 130(1) KPA). Filing of the application within the
time limit suspends its enforcement (Article 130(2) KPA).
However, the principle of non-enforcement of a decision during the course
of the proceedings opened upon an application for having the case heard again
does not apply absolutely. Exceptions to this rule are provided for in Article
130(3) and (4) KPA. Leaving aside the issue of immediate enforceability of a
decision by virtue of law (which will be presented below), a particular place
is occupied by the possibility of making the decision enforceable immediately
following the procedure provided for under Article 108 KPA (Article 130(3)
point 2 KPA). In accordance with this provision, the order of immediate
enforceability may be given in four situations. Situations are included where
it is necessary:
• to protect human health or life,
• to protect the national economy against heavy losses,
• to protect another social interest,
• to protect an exceptionally important interest of a party37.
There is consensus in the doctrine and the case-law of administrative
courts that the above grounds may not be interpreted broadly38. The notion
of necessity seems to be of key importance in this regard. The possibility of
37 In the latter case, the authority may demand the appropriate security from the party.
38 See e.g. Z Janowicz, Kodeks postępowania administracyjnego. Komentarz, Warszawa 1996,
p. 281; W. Chróścielewski [in:] W. Chróścielewski, J.P. Tarno, Postępowanie administracyjne.
Zagadnienia podstawowe, Warszawa 2002, p. 124.; Cz. Martysz [in:] G. Łaszczyca, Cz. Martysz,
A. Matan, Postępowanie administracyjne ogólne, Warszawa 2003, p. 676; J. Borkowski [in:]
B. Adamiak, J. Borkowski, Kodeks postępowania administracyjnego. Komentarz, Warszawa 2005,
p. 519.
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invoking, for instance, a social interest pursued by the decision in question
is not sufficient. If the entire activities of state administration are aimed at
pursuing this interest, its existence in a specific case does not distinguish it
amongst other cases in a manner that would support the departure from
the general rules of the procedure concerning the possibility to suspend the
appeal and the application for re-examining the case concerned. The need
to protect social interest should, therefore, be such that it requires, beyond
any doubt, not only the decision itself to be issued, but also its immediate
application. Consequently, social interest could suffer material damage if the
decision was enforced only after it gets the status of an effective decision
(Article 16(1) KPA). As the Supreme Administrative Court (NSA) holds in
its judgment of 19 February 1998, V SA 686/97, “[r]eferring to the notion of
“necessity” for immediate action, the legislator finds that it may be the case,
where, in the particular time and particular situation, it is not possible to do
without the exercise of the rights and obligations that are established in the
decision, because a delay endangers the protected values specified in Article
108 § 1 KPA. Such a threat must be realistic rather than just probable, and
the circumstance must be demonstrated in the statement of reasons for the
order of immediate enforceability”39.
The PT specifies also the cases where a decision of the President of UKE
can be made immediately enforceable. This applies to the decisions mentioned
in Article 98(3)40, Article 178(1)41, Article 201(9)42, Article 202(2)43 and
Article 203(1)44 PT. The PT stipulates that the decision concerned “shall be
enforceable immediately”. The foregoing means that the said decisions are
not enforceable immediately by virtue of law, in the meaning of Article 130(3)
point 2 KPA. Instead, it is the authority that is obliged to provide the decision
with the order of immediate enforceability. Thus, the foregoing provisions
of the PT complement the grounds for making a decision enforceable
immediately, as set out in Article 108(1) KPA. In contrast, however, to the
aforementioned provision of the KPA, they do not offer the authority a choice
of whether to attach an order of immediate enforceability. In each case of
39ONSA 1998, No 4, item 147.
40Decision on the amount of the participation in financing the subsidy for a telecommuni-
cations undertaking.
41 Decision imposing certain obligations in the event of a particular threat.
42 Decision to prohibit the performance of telecommunications operations, modify or
withdraw a general exclusive frequency licence or orbital resources licence, or a numbering
assignment.
43 Decision to order the inspected entity to take steps aiming at eliminating the threat
referred to in Article 202 para. 1 PT.
44 Decision to order discontinuation to use or operate radio equipment by unauthorised
person.
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17. ENFORCEABILITY OF REGULATORY DECISIONS AND PROTECTION… 97
issuing a decision based on the PT, the authority is, in fact, obliged to give it
such an order. Essentially, the order of enforceability should be set out in the
decision itself even though, if the authority does not do so for any reason, it
should have the possibility to issue a decision on giving such an order at a later
date. The legal basis for such a decision would be Article 108(2) KPA. Since
the order of immediate enforceability is required to be given in such cases by
PT itself, when hearing appeals the President of UKE could annul it only if
the case concerned did not refer to one of the decisions specified in Article
98(3), Article 178(1), Article 201(9), Article 202(2) or Article 203(1) PT. The
party’s position to the effect that, for instance, the order is unnecessary to
perform the obligations imposed in the situation concerned, or too onerous,
or its consequences could only be alleviated with difficulty, etc., could not be
accepted.
The determination of the moment from which the order of immediate
enforcement applies, remains controversial45. The literature on the subject
refers in this regard to both the moment the decision or ruling referred to in
Article 108(2) KPA46 is issued, and the moment it is delivered47. It seems that
the latter is better supported by the provisions of the Code, since the legislator
links the effect in the form of the authority being bound by the decision or
the ruling issued with the moment of its delivery (Article 110 in conjunction
with Article 126 KPA). Even if immediate enforcement of a decision upon
its issuance, or upon the issuance of a ruling on giving the decision the order
of immediate enforceability, were accepted (Article 108(2) KPA), this should
not apply to decisions imposing obligations upon a party. Indeed, it would
be contrary to the principles of the rule of law, including the principle of the
citizen’s trust in state authorities, to impose obligations upon a party, which
such party stands no chance to fulfil, if it has not been notified in the form
provided by the law.
The order of immediate enforceability given pursuant to Article 108 KPA
expires upon the issue of the decision changing or annulling the prior decision
(as a result of the filing of an application for re-examination of the case) by
the President of UKE. The order of immediate enforceability provided for
in the decision itself also expires upon the issue by the President of UKE of
a decision annulling such an order. Where the order is given after the decision
45 Doubts arise not only where a decision is pronounced orally (the order would then apply
from such pronouncement). This form of communicating the decision to its addressee(s) is
exceptional though (cf. Article 14 and Article 109 KPA) and is of no major importance in
practice.
46 A. Wróbel [in:] M. Jaśkowska, A. Wróbel, Kodeks postępowania administracyjnego.
Komentarz, Zakamycze 2005, p. 677.
47 Cz. Martysz [in:] Postępowanie administracyjne…, p. 678.
Vol. 2008, 1(1)
18. 98 SŁAWOMIR DUDZIK
is issued, in a separate ruling (Article 108(2) KPA), subsequently challenged
in an application for re-examining the case, the order loses effect upon the
issuance by the President of UKE of a ruling that annuls the ruling on making
the decision enforceable immediately.
With respect to this group of decisions by the President of UKE, a party
has the possibility of opening the procedure for review of their legality by
administrative courts (Regional Administrative Court (Wojewódzki Sąd
Administracyjny, WSA) in Warsaw and, further, the Supreme Administrative
Court (Naczelny Sąd Administracyjny, NSA).
The filing of an appeal with the WSA does not have an automatic suspensory
effect48. This is indicated in the provisions of Article 61(1) PPSA, under which
the filing of an appeal does not suspend the enforcement of the contested act
or activity. Therefore, the decision can be enforced. A party has, however,
the right to apply in the first place to the authority that issued the decision
(in this case the President of UKE), and, as a next step, to the court, to
suspend the enforcement of the contested decision. As pointed out in by the
doctrine, the provisions of the PPSA concerning these issues are designed with
reference to the rules of the aforementioned Recommendation No. R (89) 8
of the Committee of Ministers49. Both the literature on the subject and the
case law of the NSA present a view pointing to the necessity to observe “far-
reaching prudence” in the enforcement of effective decisions before the
expiry of the time limit for appealing against them, due to the risk of the
occurrence of irremediable consequences50. What is meant here is to keep the
necessary compromise between the effectiveness of administrative acts and the
effectiveness of their review as exercised by administrative courts.
The PPSA does not set out positive grounds that could support the
suspension of the enforcement of decisions taken by the administrative
authority. Article 61(2) point 1 PPSA specifies only the negative grounds,
the occurrence of which excludes the possibility of suspending enforcement.
Therefore the authority may suspend the enforcement of the decision unless
there are grounds which in administrative proceedings makes the decision
48 For more detail, see: R. Sawuła, “Suspensywność skargi sądowo administracyjnej” (2000)
1–2 Samorząd Terytorialny 197–206.
49 W. Chróścielewski, Z. Kmieciak, J.P. Tarno, “Reforma sądownictwa administracyjnego
a standardy ochrony praw jednostki” (2002) 12 Państwo i Prawo 39.
50 NSA judgment of 21 August 1981, II SA 108/81 (1983) 1 Orzecznictwo Sądów Polskich,
item 19; J. Borkowski, “Wstrzymanie wykonania aktu zaskarżonego do Naczelnego Sądu
Administracyjnego” [in:] Instytucje współczesnego prawa administracyjnego. Księga jubileuszowa
Profesora zw. dra hab. Józefa Filipka, ed. I. Skrzydło-Niżnik, P. Dobosz, D. Dąbek, M. Smaga,
Kraków 2001, pp. 70–71; T. Woś [in:] Postępowanie sądowoadministracyjne, ed. T. Woś, Warszawa
2004, p. 217; same [in:] Prawo o postępowaniu przed sądami administracyjnymi. Komentarz, ed.
T. Woś, Warszawa 2005, p. 294.
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19. ENFORCEABILITY OF REGULATORY DECISIONS AND PROTECTION… 99
or order immediately enforceable or where specific statute excludes staying
of their enforceability. This solution is criticised in the legal literature as
excessively restrictive from the viewpoint of the authority. T. Woś assumes in
this context that, when refusing to suspend the enforcement of a decision, the
authority has to demonstrate that one of the grounds for making the decision
enforceable immediately has been fulfilled (Article 108(1) KPA). Then, in
practice, it will be rare for the authority to deny enforcement51. These concerns
do not seem to be fully justified. Indeed, even where the grounds contained
in Article 108(1) KPA do not hold, the authority is not obliged to suspend the
enforcement of the decision but can only use this possibility. Indeed, if the rule
is the absence of a suspensory effect of an appeal filed with the administrative
court, suspending the enforcement of the contested decision should always be
regarded as an exception, rather than be commonly applied.
The authority decides on an application for suspension in a ruling. Even
though such a ruling is unappealable, it may, as a next step, be changed or
annulled by the court of law (Article 61(4) PPSA). Refusal on the part of
the authority to suspend the enforcement of a decision or a ruling does not
deprive the applicant of the right to file a corresponding application with the
court.
Suspending the enforcement of a decision by the authority pursuant to
Article 61(2) point 1 PPSA should not apply at all with respect to the decisions
specified in Article 98(3), Article 178(1), Article 201(9), Article 202(2) and
Article 203(1) PT. As far as these decisions are concerned, “grounds hold
which condition, in administrative proceedings, the making of a decision […]
enforceable immediately” in the meaning of Article 61(2) point 1 PPSA.
If, as already demonstrated, the legislator requires that the authority gives
these decisions the order of immediate enforcement, it is hard to conclude
that the same authority could subsequently waive that order. Such competence
should be vested solely with the administrative court.
A view is expressed in the legal literature that due to the wording of Article
4(1) of the Framework Directive, the possibility to suspend the enforcement
of a decision of the President of UKE should be excluded after an appeal
is filed with the administrative court52. This opinion should be considered
correct with regard to the decisions taken by the President of UKE, which
are based on the rules of Polish law implementing the provisions of the
electronic communications package of 2002. Even though Article 4(1) of the
Framework Directive refers to the possibility of suspending the enforcement of
decisions of the national regulatory authority, this competence is, nevertheless,
51 T. Woś [in:] Postępowanie sądowo administracyjne…, s. 220; same [in:] Prawo o postę-
powaniu…, p. 298.
52 S. Piątek, Prawo telekomunikacyjne w świetle…, p. 9.
Vol. 2008, 1(1)
20. 100 SŁAWOMIR DUDZIK
reserved for the appeal body and not the authority itself. This indicates the
necessity to provide in the PT for a clear exemption from Article 61(2) point
1 PPSA. Having regard to the principle of superiority and the principle of
direct applicability of Community law, it should be concluded that even in the
absence of a clear national rule, the President of UKE is obliged to refuse to
suspend the enforcement of any decision that is challenged in the court and
that pursues, in the case concerned, the objectives of Community electronic
communications Directives. In any event, the competence concerning the
suspension of a contested decision expires once the appeal is passed on to
the administrative court. From that moment on, it is only the court that can
decide on the suspension of the enforcement of the decision or ruling (in part
or in whole) (Article 61(3) PPSA).
A view has been established in the case law of the administrative courts
that “the analysis of the grounds for providing the appellant with provisional
protection leads to the conclusion that the principal objective behind
the procedure is, above all, to ensure maximum judicial effectiveness of
administrative review, through the creation of conditions warranting effective
enforcement of a court judgment… This objective, which is fundamental
for the exercise of justice, and which is pursued by administrative courts,
converges with the interest of the appellant: to keep the status quo until the
case is heard by the court. From this point of view, provisional protection is
an extremely important procedural guarantee of the party’s right because, in a
considerable proportion of cases, it is the only way to protect the party against
the consequences of defective acts and activities of public administration
bodies”53.
An application for suspending a contested decision, filed with the
administrative court, may be accompanied by an appeal, or may follow at a
later date. Unlike in proceedings before an administrative authority, the PPSA
sets out the positive grounds for suspending the enforcement of a decision,
or a ruling, by the administrative court. This is a situation “where there is a
risk of causing material damage or consequences that are difficult to repair”.
The list of these grounds is exhaustive. It makes reference to future events
that can, however, be anticipated on the basis of a reasonable assessment of
the situation, as a consequence of the issuance of the decision54. The case law
of the NSA assumes that it is a damage (financial as well as non-financial),
which cannot be compensated by a subsequent return of a performance or the
53 NSA resolution of 16 April 2007, I GPS 1/07, (2007) 4 Orzecznictwo Naczelnego Sądu
Administracyjnego i Wojewódzkich Sądów Administracyjnych, item 77. See also the comment to
the resolution by R. Sawuła, in: (2008) 1–2 Samorząd Terytorialny 162–166.
54 J. Borkowski, “Wstrzymanie wykonania decyzji w postępowaniu kasacyjnym” (2005) 14
Monitor Prawniczy 677.
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21. ENFORCEABILITY OF REGULATORY DECISIONS AND PROTECTION… 101
situation when it is not possible to restore original position. This is the case
where there is a risk of losing the subject of the performance that, due to its
properties, cannot be replaced with any other item, and its pecuniary value
would be insignificant for the complaining party, or where there is a risk of
loss of life or damage to health55.
In its aforementioned resolution of 16 April 2007, I GPS 1/07, the NSA
held that the legislator does not co-relate, even in the smallest degree, the
grounds for granting of provisional protection with the likelihood/probability
of the appeal against the decision being, eventually, succeeded. Hearing the
application for the suspension of the enforcement of a decision, the court
cannot thus consider, even preliminarily, whether the decision is defective in
any way.
The court cannot suspend the enforcement of the challenged acts where
“the special statute excludes the suspension of their performance” (Article
61(3) PPSA). It should be concluded that both, in the procedure before the
authority and in the administrative court, this ground should be understood
narrowly. This is a situation where the legislator clearly excludes the possibility
of suspending the enforcement of certain decisions or rulings by the court. As
a result, such an exclusion may not be implicit, as it constitutes an exception
to the principle of effective judicial review of administrative acts. It is worth
noting that the PT does not provide for the exclusion of the possibility of
suspending the enforcement of a decision by the regulatory authority.
A court ruling on suspending the enforcement of a challenged decision
does not bear the attribute of permanence, as it can be changed or annulled
at any time ’where circumstances change’ (this also applies to final rulings)56.
The foregoing means that the complaining party may re-submit its application
for suspension, even if it was rejected previously, provided that the party
demonstrates that the change in circumstances justifies a change in the court’s
position concerning the suspension of enforcement of the challenged decision
or ruling.
A complaint can be filed with the NSA against the ruling of the regional
administrative court concerning the suspension, or refusal to suspend, of
the enforcement of a decision or ruling (Article 194(1) point 2 PPSA). The
foregoing means that the ruling of the regional administrative court concerning
suspension is not final, until the expiry of the time limit for filing the appeal,
or until the NSA dismisses the complaint (Article 168(1) PPSA). This brings
about uncertainty as to the rights and obligations of the complainant, and
55 NSA ruling of 20 December 2004, GZ 138/04, unpublished. See also B. Dauter [in:]
B. Dauter, B. Gruszczyński, A. Kabat, M. Niezgódka-Medek, Prawo o postępowaniu przed
sądami administracyjnymi. Komentarz, Zakamycze 2006, pp. 161–163.
56 The ruling may be issued on an in-camera session (Article 61 § 5 PPSA).
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22. 102 SŁAWOMIR DUDZIK
is contrary to the requirement of speediness of court decisions on interim
measures57.
In any event, the suspension of the enforcement of a decision or ruling no
longer holds where the court issues a judgment that concludes the procedure at
fist instance (Article 61(6) PPSA). Where the judgment accepts the complaint,
the court finds ‘whether and to what extent the contested act or activity cannot
be performed’. This decision applies until the judgment becomes final (Article
152 PPSA).
Suspension of the enforcement of a decision is also possible at the stage
of the procedure before the NSA in the case of a cassation complaint. This
has recently been confirmed by the aforementioned resolution of the NSA
of 16 April 2007 under which: “[f]or provisional protection to yield the
desired result, it must be possible to apply it at any stage of the judicial and
administrative procedure, including in the proceedings before the Supreme
Administrative Court”.
3. Decisions that may be appealed
to the Court of Competition and Consumer Protection
The decisions in cases for the designation of significant market power listed in
Article 206(2) PT, for the imposition of regulatory obligations, for the imposition
of penalties and decisions issued in disputes (except decisions on general
exclusive frequency licences), may be appealed to the SOKiK58. This Court is
part of the state court system in Poland and operates within the structures of the
Regional Court (Sąd Okręgowy) in Warsaw. The proceedings before the SOKiK
are governed by the provisions of the Code of Civil Procedure (KPC); appeals
against its judgments are heard by the Appellate Court in Warsaw.
The possibility of filing an appeal with the SOKiK applies to situations,
where the party is not entitled to use the means of appeal typical for the
review of the functioning of central administrative authorities in Poland,
such as an application for the re-examination of a case, or a complaint to the
administrative court. The legislator has decided that the said decisions are
enforceable immediately by virtue of law itself (Article 206(2a) PT). It means
that in such cases Article 108 KPA or another special procedure does not
apply, and the party is obliged to proceed with implementing the decision upon
its delivery. However, the authority should inform the party of its immediate
57 Cf. T. Woś [in:] Postępowanie sądowo administracyjne…, p. 220
58 As rightly pointed out by S. Piątek, these are any decisions issued in such cases,
both positive and negative, annulling, changing, declaring invalidity. See. S. Piątek, Prawo
telekomunikacyjne…, op.cit. p. 1122.
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23. ENFORCEABILITY OF REGULATORY DECISIONS AND PROTECTION… 103
enforceability by virtue of law in the content of the decision itself (Article 9,
Article 11 and Article 107(3) KPA).
The effect of the immediate enforceability of a decision by virtue of law
is excluded, however, with respect to decisions on the imposition of financial
penalties. Furthermore, in the case of penalties, the legislator excludes
even the possibility of making the decision enforceable immediately by the
authority pursuant to Article 108 KPA. Article 210(1) second sentence PT
directly stipulates that “[t]he decision to impose a financial penalty shall not
be enforceable immediately”. The foregoing means that where an appeal is
filed with the SOKiK on the imposition of a financial penalty, such a decision
will become enforceable only when the judgment of the court, provided it is
unfavourable to the appellant, becomes final (Article 363 KPC). This usually
means a situation where the SOKiK has dismissed the appeal of the punished
entity, and the Appellate Court has subsequently dismissed the appeal against
such a judgment of the SOKiK.
The KPC gives the SOKiK the possibility to decide to suspend the
enforcement of a challenged decision of the President of UKE until the case
is resolved (Article 47963 KPC). This possibility undoubtedly applies also to
decisions, which are enforceable immediately by virtue of law. Contrary to the
concerns voiced in the legal literature59, suspending the enforcement of the
latter decisions, the court does not change the provisions of the legal norm
under Article 206(2a) PT. In such cases, the operation by the SOKiK has
a clear legislative basis (Article 47963 KPC). In other words, even though the
legislator considers the above decisions to be enforceable immediately by virtue
of law, it provides, at the same time, for such enforceability to be suspended in
specific cases if the competent court so decides. Additionally, the competence
of the appeal body (in this case the SOKiK) to suspend the enforcement of
a decision of the regulatory authority is expressly provided for in Article 4(1)
of the Framework Directive. This means that Article 206(2a) PT may not be
interpreted in a way that would be contrary to the said Community act.
In cases for the suspension of the enforcement of a decision of the
President of UKE, the SOKiK acts solely upon an application from a party.
The possibility of filing an application has been closely linked to the filing of
an appeal. An application may be filed only “[in] case of filing of an appeal…”
(and hence, it would be inadmissible to file an application without appealing
the contested decision of the regulatory authority), and only by the party
that has filed the appeal (Article 47963 KPC). The request for suspending the
decision of the President of UKE may be submitted to the SOKiK together
with the appeal or after it is filed.60 By analogy to the proceedings before
59 Cf. M. Rogalski, Zmiany w prawie…, pp. 250–251.
60 The SOKiK may hear an application on an in-camera session.
Vol. 2008, 1(1)
24. 104 SŁAWOMIR DUDZIK
the NSA, the additional creation of the possibility to file an application for
suspending the enforcement of a regulatory decision at the stage of the appeal
proceedings should be supported. This is dictated by reasons of effectiveness
of judicial review of administration, taken into account by the NSA in its
resolution of 16 April 2007, I GPS 1/07.
Even though it does not follow directly from the provisions of the KPC,
it should be concluded that an application to suspend the enforcement of
a decision can be filed again if justified in the light of new circumstances.
A change in circumstances may also lead to the modification, or annulment,
of the ruling already issued, on suspending the enforcement of a decision61.
The KPC does not set out the premises to be followed by the SOKiK
adjudicating on an application for suspending the enforcement of a decision
of the President of UKE. A view is expressed by the legal doctrine on this
subject that it may be helpful to invoke the case law developed under Article
108 KPA, seen a contrario, or the grounds for suspending the enforcement
of a decision of the administrative court specified in Article 61(3) PPSA.62
It seems that the latter solution is more correct. The procedural guarantees
under both types of proceedings (i.e. before administrative court and SOKiK)
should be approximated to the greatest degree possible.
Hence the SOKiK should also consider whether in the case in question
there is a risk of doing significant damage, or causing effects that may be
difficult to reverse, whereas the ruling of the SOKiK should not be affected
by the very issue of the defectiveness of the decision.
What is of considerable importance for the effectiveness of court protection
is, amongst other things, the time that elapses between the filing of the
application for suspending the enforcement of a decision and the issuance of
the judgment by the SOKiK. Too long a delay in hearing the application may
make it pointless for the party, due to the prior full enforcement (voluntarily
or through administrative enforcement) of the challenged decision. Hence,
the SOKiK should aim to hear the application in as short a period of time
as possible. By analogy to the application for securing a claim (Article 737
KPC), the Court should act without delay, not later than within a week of the
date it receives the application. This issue should be expressly defined in the
provisions of the KPC on the proceedings before the SOKiK.
61 Article 359 § 1 KPC stipulates that “Rulings which do not conclude the proceedings in
the case may be annulled and changed as a result of a change in the circumstances of the case,
even though they were challenged, and even final.”
62 S. Gronowski, Ustawa antymonopolowa. Komentarz, Warszawa 1999, p. 302; I. Gabrysiak,
“Upadek rygoru natychmiastowej wykonalności decyzji uchylonej nieprawomocnym wyrokiem
SOKiK” (2008) 2 Prawo Teleinformatyczne 20.
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25. ENFORCEABILITY OF REGULATORY DECISIONS AND PROTECTION… 105
A judgment of the SOKiK that suspends the enforcement of the contested
decision taken by the President of UKE is effective when pronounced, or when
the conclusion thereof is signed (Article 360 KPC). However, the legislator does
not require for the ruling to be provided with a statement of reasons (cf. Article
357(1) and (2) KPC). This gap should also be filled through an intervention
from the legislator (modelled on the solutions, which are in place in proceed-
ings before administrative courts). The foregoing is strictly connected with the
necessity to create, in the Polish legal system, the possibility of appealing to the
Appellate Court against judgments of the SOKiK on suspending the enforce-
ability of decisions taken by the President of UKE. The rules currently in place
do not offer such a possibility, which considerably limits procedural guarantees
of the appellant, and discriminates between the proceedings before the SOKiK
and those before administrative courts, to the disadvantage of the former.
Legal doctrine also considers the consequences of a non-final judgment
by the SOKiK annulling the decision of the President of UKE for immediate
enforceability of such a decision under Article 206(2a) PT. It is asserted that
such a judgment (before it becomes final) should automatically result in the
decision to which it pertains being deprived of the attribute of immediate
enforceability63. This position does not seem convincing. Even though Article
4(1) of the Framework Directive offers the possibility of suspending the
enforcement of a decision of the national regulatory authority, nevertheless,
the Directive reserves the competence to determine this matter for the appeal
body. Hence, until the judgment by the SOKiK becomes final, the effect in
the form of suspending the enforcement of the challenged decision cannot
occur by virtue of law itself. One can only propose for the legislator to decide,
also in this context, to amend the provisions of the KPC modelled on Article
152 PPSA. Annulling a decision of the President of UKE, the SOKiK should
therefore have a possibility to expressly decide whether and, if so, to what
extent, a decision not yet finally annulled, may continue to be enforced.
VI. Conclusions
The Polish legal system protects, in part, only the rights of telecommunications
undertakings in connection with the enforcement of regulatory decisions on
electronic communications. It is worth praising the administrative procedure
rules concerning the proceedings held before the President of UKE, and the
rules that govern the proceedings before administrative courts to the extent
63 I. Gabrysiak, Upadek rygoru…, pp. 20–21.
Vol. 2008, 1(1)
26. 106 SŁAWOMIR DUDZIK
to which these courts are competent to hear appeals against decisions of the
President of UKE. The only more significant suggestion de lege ferenda in
this respect concerns the recognition of the full effectiveness of rulings of the
regional administrative court (WSA) to suspend the enforcement of a decision
of the regulatory authority.
The procedural guarantees relating to the suspension of the enforcement
of decisions taken by the President of UKE by the SOKiK, on the other hand,
should be viewed rather critically. Although the possibility of suspending the
enforcement of such decisions also exists under the latter procedure, contrary
to the aforementioned standards set out by the Council of Europe and the
models taken from Community law, judgments of the SOKiK in such cases,
do not require to be provided with a statement of reason and are not subject
to review by the court of second instance. Neither does the law expressly
set the premises to be followed by the court in such cases. This means
that Polish law does not fully guarantee effective legal protection to Polish
telecommunications undertakings, and by doing so, it limits their right of
appeal referred to in Article 4(1) of the Framework Directive. This situation
requires urgent legislative amendments, the closest model for which can be
the rules concerning the proceedings before administrative courts.
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